Implementing Health Reform: Excepted Benefits, Employer Mandate, And Cost-Sharing Reduction Payments
Originally posted by Timothy Jost on February 15, 2015 on www.healthaffairs.org.
Three developments in the second week in February, 2015, remind us that implementation of the Affordable Care Act is a multi-department effort.
Supplemental Excepted Benefits
The first of these is a new guidance on “excepted benefits.” The Affordable Care Act does not regulate excepted benefits — various categories of health-related benefits that are not traditional medical coverage. Excepted benefits were excepted from the requirements of the 1996 Health Insurance Portability and Accountability under ERISA, the Internal Revenue Code, and the Public Health Services Act and continue to be excepted from the requirements of the Affordable Care Act. The agencies that administer these laws, however, must define the scope of excepted benefits to clarify the benefits not subject to the ACA. To that extent, therefore, they regulate those benefits.
On February 13, 2014, the IRS, Department of Labor, and HHS issued a frequently asked question guidance concerning a specific category of excepted benefits, supplemental excepted benefits. Supplemental excepted benefits are provided under a separate policy, certificate, or contract of insurance and supplement Medicare (so-called Medigap) or Tricare coverage, or provide “similar” supplemental coverage to a group health plan.
The excepted benefits regulations provide that coverage supplemental to a group health plans “must be specifically designed to fill gaps in primary coverage, such as coinsurance or deductibles.” Under earlier guidance coverage supplemental to a group plan will qualify as excepted benefits if:
- The policy, certificate, or contract is issued by an entity that does not provide the primary coverage under the plan;
- The supplemental coverage is designed specifically to fill gaps in primary coverage, such as coinsurance or deductibles;
- The cost of the supplemental coverage is not more than 15 percent of the cost of primary coverage; and
- Supplemental coverage in the group insurance market does not differentiate among individuals in eligibility, benefits, or premiums based upon a health factor of the individual or a dependent.
The FAQ notes that at least one insurer is currently selling supplemental coverage that covers a single benefit rather than cost-sharing. The FAQ states that coverage of particular benefits, rather than coverage of cost-sharing, can qualify as supplemental excepted benefit coverage only if it covers benefits that are not essential health benefits (EHB) in the state where it is being marketed and has been filed and approved by the state (as may be required under state law). Such a policy could, for example, cover complementary and alternative medicine modalities, bariatric surgery, or abortion benefits that were not part of a state’s EHB. The guidance states that the agencies intend to issue regulations addressing this but in the interim will exercise their regulatory discretion in accordance with this guidance and urge the states to do so as well.
Employer Mandate Compliance
In another development, the IRS on February 11 issued an updated information sheet on employer mandate compliance. This guidance does not offer any new information as far as I can tell, but it is a useful and concise summary of the employer mandate and its enforcement.
Reconciling Cost-Sharing Reduction Payments
Finally, on February 13 the Centers for Medicare and Medicaid Services of HHS released at its REGTAP website a guidance on the timing of reconciliation of cost-sharing reduction payments for the 2014 benefit year. Cost-sharing reduction payments are payments made to health insurers to reimburse them for reducing the out-of-pocket costs of enrollees in marketplace qualified health plans (QHPs) with incomes below 250 percent of poverty to make health care affordable to those enrollees. Cost sharing reductions are also offered American Indians and Alaska natives.
The total amount of cost-sharing that an enrollee will incur cannot be known until the end of a benefit year, but insurers must cover reduced cost sharing in their payments to providers on a continual basis. Cost-sharing reduction payments are made, therefore, to insurers monthly on an actuarially estimated basis. At the end of the benefit year, however, estimated payments must be reconciled with actual payments due. Reconciliation for 2014 was to be performed in April of 2015, as it takes some time for claims for a benefit year to finally “run out.”
Reconciliation was to have been accomplished by comparing the cost-sharing that actual enrollees paid under the cost-sharing reduction variation that applies to their category with what they would have paid under the standard variation of their plan. This involves a “double adjudication” of claims applying both variations, and apparently some insurers were not able to do this. On a transitional basis, CMS allowed insurers to use a simplified methodology based on actuarial estimates of certain key cost-sharing parameters.
When enrollment in a QHP standard plan is insufficient to derive statistically credible estimates of actuarially derived cost-sharing (12,000 member months are required as a minimum), insurers must use a formula based on the plan variation’s actuarial value (the “AV methodology”) to estimate payments. But this approach does not produce accurate results. CMS has concluded many insurers have been unable to upgrade their systems in time for reconciliation using double adjudication, and that many of those using the AV methodology are not achieving accurate results.
To improve accuracy, CMS has decided to delay reconciliation for 2014 until April 30, 2016 and to allow plans that had selected the simplified methodology to switch to the more accurate standard methodology. Insurers may not switch from the standard to the simplified methodology. Because the delay is expected to result in more accurate payments, it should not disadvantage either the government or insurers. The guidance announces this delay.
Download the full article here.
Copyright 1995 - 2015 by Project HOPE: The People-to-People Health Foundation, Inc.
IRS Clarifies Prior Guidance on Premium Reimbursement Arrangements; Provides Limited Relief
Originally posted February 24, 2015 by Daimon Myers, Proskauer - ERISA Practice Center on www.jdsupra.com.
Continuing its focus on so-called “premium reimbursement” or “employer payment plans”, the Internal Revenue Service (IRS) released IRS Notice 2015-17 on February 18, 2015. In this Notice, which was previewed and approved by both the Department of Labor (DOL) and Department of Health and Human Services (collectively with the IRS, the “Agencies”) clarifies the Agencies’ perspective on the limits of certain employer payment plans and offers some limited relief for small employers.
Prior guidance, released as DOL FAQs Part XXII and described in our November 7, 2014 Practice Center Blog entry, established that premium reimbursement arrangements are group health plans subject to the Affordable Care Act’s (ACA’s) market reforms. Because these premium reimbursement arrangements are unlikely to satisfy the market reform requirements, particularly with respect to preventive services and annual dollar limits, employers using these arrangements would be required to self-report their use and then be subject to ACA penalties, including an excise tax of $100 per employee per day.
Since DOL FAQs Part XXII was released, the Agencies’ stance has been the subject of frequent commentary and requests for clarification. With Notice 2015-17, it appears that the Agencies have elected to expand on the prior guidance on a piecemeal basis, with IRS Notice 2015-17 being the first in what may be a series of guidance. The following are the key aspects of Notice 2015-17:
- Wage Increases In Lieu of Health Coverage. The IRS confirmed the widely-held understanding that providing increased wages in lieu of employer-sponsored health benefits does not create a group health plan subject to market reforms, provided that receipt of the additional wages is not conditioned on the purchase of health coverage. Quelling concerns that any communication regarding individual insurance options could create a group health plan, the IRS stated that merely providing employees with information regarding the health exchange marketplaces and availability of premium credits is not an endorsement of a particular insurance policy. Although this practice may be attractive for a small employer, an employer with more than 50 full-time employees (i.e., an “applicable large employer” or “ALE”) should be mindful of the ACA’s employer shared responsibility requirements if it adopts this approach. ALEs are required to offer group health coverage meeting certain requirements to at least 95% (70% in 2015) of its full-time employees or potentially pay penalties under the ACA. Increasing wages in lieu of benefits will not shield ALEs from those penalties.
- Treatment of Employer Payment Plans as Taxable Compensation. Some employers and commentators have tried to argue that “after-tax” premium reimbursement arrangements should not be treated as group health plans. In Notice 2015-17, the IRS confirmed its disagreement. In the Notice, the IRS acknowledges that its long-standing guidance excluded from an employee’s gross income premium payment reimbursements for non-employer provided medical coverage, regardless of whether an employer treated the premium reimbursements as taxable wage payments. However, in Notice 2015-17, the IRS provides a reminder that the ACA, in the Agencies’ view, has significantly changed the law, including, among other things, by implementing substantial market reforms that were not in place when prior guidance had been released. The result: the Agencies have reiterated and clarified their view that premium reimbursement arrangements tied directly to the purchase of individual insurance policies are employer group health plans that are subject to, and fail to meet, the ACA’s market reforms (such as the preventive services and annual limits requirements). This is the case whether or not the reimbursements or payments are treated by an employer as pre-tax or after-tax to employees. (This is in contrast to simply providing employees with additional taxable compensation not tied to the purchase of insurance coverage, as described above.)
- Integration of Medicare and TRICARE Premium Reimbursement Arrangements. On the other hand, although the Notice confirms that arrangements that reimburse employees for Medicare or TRICARE premiums may be group health plans subject to market place reforms, the Agencies also provide for a bit of a safe harbor relief from that result. As long as those employees enrolled in Medicare Part B or Part D or TRICARE coverage are offered coverage that is minimum value and not solely excepted benefits, they can also be offered a premium reimbursement arrangement to assist them with the payment of the Medicare or TRICARE premiums. (The IRS appropriately cautions employers to consider restrictions on financial incentives for employees to obtain Medicare or TRICARE coverage.)
- Transition Relief for Small Employers and S Corporations. Although many comments on the prior guidance concerning employer payment plans requested an exclusion for small employers (those with fewer than 50 full-time equivalent employees), the IRS refused to provide blanket relief. The IRS notes that the SHOP Marketplace should address the small employers’ concerns. However, because the SHOP Marketplace has not been fully implemented, no excise tax will be incurred by a small employer offering an employer payment plan for 2014 or for the first half of 2015 (i.e., until June 30, 2015). (This relief does not cover stand-alone health reimbursement arrangements or other arrangements to reimburse employees for expenses other than insurance premiums.) This is welcome relief to small employers who adopted these arrangements notwithstanding the Agencies’ prior guidance that they violated certain ACA marketplace provisions.
- In addition to granting temporary relief to small employers, the IRS also provided relief through 2015 for S corporations with premium reimbursement arrangements benefiting 2% shareholders. In general, reimbursements paid to 2% shareholders must be included in income, but the underlying premiums are deductible by the 2% shareholder. The IRS indicated that additional guidance for S corporations is likely forthcoming.
The circumstances under which premium reimbursement arrangements are permitted appears to be rapidly dwindling, and the IRS indicated that more guidance will be released in the near future. Employers offering these arrangements should consult with qualified counsel to ensure continuing compliance with applicable laws.
Supreme Court Hears Oral Argument in ACA Subsidies Challenge
Originally posted By:
Yesterday morning, the U.S. Supreme Court heard oral arguments in King v. Burwell, the second challenge to the Affordable Care Act (ACA) to reach the Court. This challenge targets the availability of subsidies on the Exchanges that were established by the Department of Health and Human Services (HHS) for the 34 states with HHS-established Exchanges.
The challengers contend that the tax code restricts subsidies to individuals who enroll in coverage through a state run Exchange when it provides that the amount of the subsidy is based on premiums on an Exchange “established by the State.” 26 U.S.C. § 36B(b)(2)(A). The Administration, however, defends an Internal Revenue Service (IRS) rule that makes subsidies available on state-run and HHS-established Exchanges alike, contending that section 1321 of the ACA makes HHS-established Exchanges equivalent to state-run Exchanges.
It is notoriously difficult to ascertain the likely outcome of a case based on oral arguments. Rather, oral arguments merely suggest at the leanings of particular Justices as they prepare to discuss the case and to assign drafting of the opinion(s) in private conference. Nonetheless, oral arguments provide the only public hints of the Justices’ views before the Court issues its decision this summer.
The Likely Swing Votes. As many expected, the tenor of oral arguments suggested that Chief Justice Roberts and Justice Kennedy are the likely swing votes in this case. It appeared that the so-called liberal block of the Court—Justices Ginsburg, Breyer, Kagan, and Sotomayor—are critical of the challengers’ interpretation of the statute. Rather, they seem inclined to conclude that the IRS rule is a permissible interpretation of the statute or that the rule reflects the only viable interpretation of the statute. On the other hand, Justices Scalia and Alito appeared to be highly critical of the Administration’s position. As is his typical practice, Justice Thomas did not ask any questions during oral argument, but most Court watchers expect that his views likely align with those of Justice Scalia and Alito. Some Court watchers had suggested that Justice Scalia might look to context to conclude that the subsidy provision is ambiguous, but his questions appeared to reflect a view that Congress enacted a statute that clearly restricts the availability of subsidies, despite the potential practical consequences of such an enactment.
Federalism and Constitutional Avoidance. One surprise yesterday was Justice Kennedy’s expression of constitutional concerns and potential inclination to avoid a constitutional problem by considering the Administration’s interpretation of the statute. In short, his questions echoed federalism concerns raised in an amicus brief drafted by a number of states. While Justice Kennedy aligned with the conservative block of the Court in NFIB v. Sebelius, he may be amenable to upholding the IRS rule here to the extent that the Administration’s interpretation is viable.
Justice Kennedy’s concerns regarding federalism do not flow from the impact that an adverse decision against the government will have on the newly insured public in states without state operated Exchanges. Rather, his concerns stem from his deeply held belief that the Court owes the utmost respect under the structure of the Constitution to the semi-sovereign states. In his view, Congress is not allowed to coerce states into doing something it wants. Those federalism concerns came to the fore when Justice Kennedy asked challenger’s counsel: “If your argument is accepted, the states were told to establish exchanges in order to receive money [for their citizens] or send the insurance market into a death spiral; isn’t that coercion? Under your argument, there would be a serious constitutional problem.” While the government had not raised the federalism argument, it had been raised by state amici. Citing South Dakota v. Dole, he noted that Congress is required to advise states about the conditions attached to the acceptance of federal grants. Here, clearly, Kennedy views the loss of subsidies for a state’s residents as such an unknown condition. The thinking seems to be that when interpreting a statute, given the warning by the Court about such coercion, Congress could not have intended such result. He hinted as much when later he suggested to government’s counsel that he should argue for the government’s view of the statute to avoid the constitutional concern. If Justice Kennedy is the swing-vote here, it is because he does not believe that Congress intended a reading of the statute that creates an unconstitutional coercion, similar to the Court’s reasoning in striking down the Medicaid provision in NFIB v. Sebelius.
Chevron Deference. Although the decisions of the lower courts in this and similar challenges have focused onChevron v. National Resources Defense Council, the Supreme Court spent little time discussing the potential application of Chevron deference in this case. Instead, it appeared that some members of the Court were more inclined to conclude that there is only one permissible interpretation of the statute—whether that interpretation is the one advanced by the challengers or the Administration.
A brief exchange between Solicitor General Verilli, Justice Kennedy, and Chief Justice Roberts, however, suggests that some members of the Court may be skeptical of the applicability of Chevron deference to tax credits. During this exchange, Justice Kennedy expressed skepticism that a question of this economic magnitude could be left to the Internal Revenue Service. He said, “It seems to me a drastic step for us to say that the [Internal Revenue Service] can make this call one way or the other when there are . . . billions of dollars of subsidies involved . . . . It seems to me our cases say that if the Internal Revenue Service is going to allow deductions using these, that it has to be very, very clear.” Solicitor General Verrilli responded citing to the Court’s 2011 decision in Mayo Foundation for Medical Education & Research v. United States for the notion that “Chevron [deference] applies to the tax code like anything else.” Chief Justice Roberts, however, appeared concerned that, under this approach “a subsequent administration could change” course and adopt a contrary interpretation concerning the availability of tax credits. The Chief Justice asked very few questions during oral argument, but this exchange suggests he may be inclined to interpret the statute as unambiguous and not implicating Chevron deference, whether in favor of the Administration or the challengers.
Standing. The U.S. Constitution establishes that federal court jurisdiction extends only to cases involving an actual injury, economic or otherwise. While media coverage in recent weeks has focused on the standing of the four individual plaintiffs challenging the individual mandate, it does not appear that the Court will avoid reaching the merits of the case based on standing concerns. No fact-finding has taken place in this case because the appeal stems from a motion to dismiss filed by the Government. Therefore, Solicitor General Verrilli indicated that he believes it’s appropriate to take the plaintiffs’ attorney’s word that one or more of the plaintiffs has standing and that the dispute is not moot. While Justice Ginsburg asked early questions indicating a concern with standing, it did not appear that other members of the Court were inclined to take up the issue.
Practical Consequences. Over 85 percent of individuals who enroll in coverage on an Exchange receive subsidies to help pay for the cost of premiums and/or to reduce cost-sharing on the Exchange plan. Most of these individuals reside in the 34 states that have HHS-established Exchanges. Absent these subsidies, some individuals would be unable to afford coverage and would therefore be exempt from the individual mandate. Others may have affordable coverage options but may decline to purchase coverage given the cost. The resulting reduced enrollment would both increase the number of uninsured in states without state-run Exchanges and constrict the risk pool on those Exchanges. As the risk pool trends toward a smaller group of less healthy individuals, premiums would increase, which some believe would threaten a death spiral on the individual market.
In addition, the employer mandate’s operation depends on whether employees can purchase subsidized Exchange coverage absent affordable and sufficient employer coverage. Without subsidies, employers in states with HHS-established Exchanges would not be subject to the employer mandate unless 30 or more of its employees actually reside in a neighboring state with a state-run Exchange. While many observers believe that large employers would continue to offer coverage without the employer mandate, there is some concern that such employer-sponsored coverage might not be affordable among lower income workers, resulting in greater numbers of uninsured individuals.
During oral argument, the challenger’s counsel, Mr. Carvin, contended that there was no evidence that limitations on the subsidies would produce such disastrous consequences. But, it appeared that most of the Justices were concerned about the market consequences if subsidies were eliminated in some markets. Justice Alito, acknowledging these concerns, suggested that the Court might stay the mandate to provide states with an opportunity to establish state-run Exchanges before subsidies on HHS-established Exchanges are eliminated. On the other hand, Justice Scalia expressed confidence that Congress would act to address and mitigate destabilization of the individual market. Thus, at this stage, it is unclear how a reversal of the IRS rule might be implemented and what, if anything, the Court might do to mitigate the impact of the judgment. But certainly the potential market consequences of the elimination of subsidies on HHS-established Exchanges would be significant for plans, providers, and patients alike. Last Tuesday, HHS Secretary Burwell stated in aletter to Congress that the Administration “know[s] of no administrative actions that could . . . undo the massive damage to our health care system that would be caused by an adverse decision.”
Furthermore, if the Court concludes that the challengers’ interpretation is the only viable interpretation of the statute, the decision may prompt further litigation concerning the constitutionality of linking the availability of subsidies to a state’s establishment of a state-run Exchange. Justice Kennedy’s comments and questions during oral argument focused largely on the 10th Amendment and the concern that restricting subsidies to state-run Exchanges may constitute impermissible coercion of the states by the federal government. Judicial resolution of these issues may require a new case challenging to the statute’s constitutionality and addressing the severability of the various subsidy and market reform provisions of the ACA.
But, if the Court upholds the IRS rule and concludes that the Administration’s interpretation is the only viable interpretation of the statute—whether based on the plain text and context of the provision or because of the doctrine of constitutional avoidance—the implementation of the ACA will continue without significant change and stakeholders would have the security of knowing that a future administration would be unable to reverse the IRS rule and restrict subsidies to state-run Exchanges. On the other hand, if the Court upholds the IRS rule based on Chevron deference, a future administration could reverse course and eliminate subsidies on HHS-established Exchanges.
Copyright © 2015 Hooper Lundy & Bookman PC | www.health-law.com
IRS Begins Preparing Cadillac Tax Regulations; Public Input Requested
Originally posted February 24, 2015 on www.ifebp.org.
In Notice 2015-16, the Internal Revenue Service (IRS) outlines potential approaches for future proposed regulations regarding the excise tax on high cost employer-sponsored health coverage under section 4980I, also known as the Cadillac tax.
The notice is intended to initiate and inform the process of developing regulatory guidance regarding the excise tax on high cost employer-sponsored health coverage under section 4980I of the Internal Revenue Code. Section 4980I, which was added by the Affordable Care Act, applies to taxable years beginning after December 31, 2017.
Under this provision, if the aggregate cost of “applicable employer-sponsored coverage” provided to an employee exceeds a statutory dollar limit, which is revised annually, the excess is subject to a 40% excise tax.
The issues addressed in this notice primarily relate to:
- the definition of applicable coverage,
- the determination of the cost of applicable coverage, and
- the application of the annual statutory dollar limit to the cost of applicable coverage. The Department of the Treasury (Treasury) and IRS invite comments on the issues addressed in this notice and on any other issues under section 4980I.
This notice describes potential approaches on a number of issues which could be incorporated in future proposed regulations, and invites comments on these potential approaches.
Treasury and IRS intend to issue another notice before the publication of proposed regulations under section 4980I, describing and inviting comments on potential approaches to a number of issues not addressed in this notice, including procedural issues relating to the calculation and assessment of the excise tax.
After considering the comments on both notices, Treasury and IRS anticipate publishing proposed regulations under section 4980I. The proposed regulations will provide further opportunity for comment, including an opportunity to comment on the issues addressed in the preceding notices.
'Cadillac' Tax Could Diminish Union Health Plans
Originally posted by Bob Herman on March 3, 2015 on businessinsider.com.
Health plans obtained through union collective bargaining agreements often include much more generous benefits than other employer-sponsored plans. But such benefits are likely to be pared down as the Affordable Care Act's excise tax nears, a new study in Health Affairs contends.
That excise tax, often called the “Cadillac” tax, will go into effect Jan. 1, 2018. A 40% tax will be levied on every dollar of total premiums paid above $10,200 for individual health plans and $27,500 for family plans.
Policymakers included the Cadillac tax in the ACA as a way to raise revenue to fund the law. The Congressional Budget Office estimates it will bring in $120 billion between 2018 and 2024. Most of that will come from higher taxes on employees' taxable wages instead of the tax-exempt insurance benefits.
But the tax also was viewed as a way to reduce the number of health plans that have little cost-sharing and premium contributions, which some argue contribute to the overuse of healthcare. President Barack Obama has been quoted as saying the excise tax will discourage “these really fancy plans that end up driving up costs.” Lavish executive-level health plans and collegiate benefit packages, like Harvard University's, have been oft-cited targets. However, many collectively bargained policies fall into the Cadillac bracket as well.
The Health Affairs study, published Monday, sought specifics about what kind of health benefit packages unions provide for employees. People with union plans have lesser out-of-pocket obligations and don't pay as much per month toward their premium as others with employer-based insurance, but the surprise was “the magnitude of the differences for certain things,” said Jon Gabel, a healthcare fellow at NORC at the University of Chicago and one of the study's authors.
For instance, families in collectively bargained plans paid about $828 per year toward their premium, or about $69 per month, according to the study's surveyed data. That compared to $4,565 for the average employer-sponsored family plan, or about $380 per month, according to 2013 data from the Kaiser Family Foundation.
Cost-sharing requirements also were less onerous in union health plans, the study found. The average annual in-network deductible for an individual in a collectively bargained plan was $203. The average deductible at other employer-based plans was almost six times higher at $1,135.
Although the federal government is considering some flexibility for “high risk” unionized occupations such as miners and construction workers, many employers are looking to get ahead of the excise tax by slimming down benefits.
“For those who are fortunate to have a Cadillac plan right now, it's probably not going to be so comprehensive in the future,” Mr. Gabel said. However, he said, reduced benefits should lead to increased wages to offset higher cost-sharing.
Tom Leibfried, a health care lobbyist for the AFL-CIO, a federation of 56 unions, calls the Cadillac tax “a misnomer” because union plans apply to middle-class Americans with modest wages. The issue should not be about the generosity of health coverage, but rather whether the coverage is appropriate for people based on the health care costs in their geography, he said.
“Trying to control utilization in that way really does amount to a cost-shift,” Mr. Leibfried said. “This is really a middle-class problem.”
Higher compensation supplanting lost benefits is not a sure thing either, Mr. Leibfried said. Indeed, wages and salaries have been mostly stagnant the past decade, barely edging out inflation even as health benefits shrink.
IRS Offers Relief for Small Employer Premium Reimbursement Arrangements
Originally posted February 25, 2015 by Laura Kerekes on ThinkHR.com.
On February 18, 2015, the IRS announced transition relief for certain small employers that subsidize the cost of individual health insurance policies for employees. Notice 2015-17 provides short-term relief from the $100 per employee per day excise tax that otherwise would apply to the employer.
Starting in 2014, employers of all sizes have been prohibited from making or offering any form of payment to employees for individual health insurance premiums, whether through reimbursement to employees or direct payments to insurance carriers. Employers also are prohibited from providing cash or compensation to employees if the money is conditioned on the purchase of individual health coverage. Employers that violate the prohibitions against these so-called “employer payment plans” are subject to an excise tax of $100 per day per affected employee. Exceptions are allowed for limited-scope dental or vision policies, supplemental plans, or retiree-only plans.
Small businesses in particular have been affected by the prohibition since many of them had subsidized individual policies for workers instead of offering a group health plan. Notice 2015-17 now offers short-term relief from tax penalties to give small employers additional time to comply with the prohibition. This relief applies only to small employers. Employers who are defined under the Affordable Care Act as applicable large employers (ALEs) — generally those with 50 or more full-time and full-time-equivalent employees — are not eligible for relief.
Specifically, the IRS will not impose excise taxes on employers that provide pretax reimbursement or payment of individual health insurance premiums as follows:
- For 2014, employers that are not ALEs (based on employer size in 2013).
- For January 1 through June 30, 2015, employers that are not ALEs (based on employer size in 2014).
Starting July 1, 2015, excise taxes may apply regardless of the employer’s size.
Note: This transition relief applies only to pretax reimbursement or payment of insurance premiums. It does not apply to after-tax reimbursements. It also does not apply to stand-alone health reimbursement arrangements (HRAs) or other arrangements to reimburse employees for expenses other than insurance premiums.
Additional Relief Provisions
Notice 2015-17 also provides relief for certain arrangements that reimburse premiums for 2-percent-or-more shareholders in Subchapter S corporations, and for certain employers that reimburse Medicare premiums or TRICARE expenses. These provisions are complex and affected employers should refer to their legal and tax advisors for guidance.
Compliance Calendar 2015
The following are important compliance due dates and reminders for 2015. The laws and due dates apply based on the number of employees, whether or not someone does business with the Government, and on benefits offered. Other state-by-state laws may also apply.
1/1/2015 - Minimum Wage changes: Although no federal minimum wage increase goes into effect, many states and/or cities may have a scheduled minimum wage increase. Jan. 2015 state minimum wage increases include: Alaska $8.75, Arizona $8.05, Arkansas $7.50, Connecticut $9.15, Florida $8.05, Hawaii $7.75, Massachusetts $9.00, Missouri $7.65, Montana $8.05, Nebraska $8.00, New Jersey $8.38, New York $8.75, Ohio $8.10, Oregon $9.25, Rhode Island $9.00, South Dakota $8.50, Vermont $9.15, Washington $9.47, West Virginia $8.00
1/1/2015 - Social Security Taxable Limit Increases: The maximum amount of earnings subject to the Social Security tax (taxable maximum) has been increased for 2015 to $118,500 from $117,000.
1/1/2015 – Retirement Plan Limits: The Internal Revenue Service has adjusted retirement plan limits. If you offer a retirement plan, verify and update your limits.
1/1/2015 – W-2 Reporting of Health Benefits: Employers who issue 250 or more W-2 for the year must continue to track and report premiums paid by the employer on W-2s for health plans. Employers are not required to report contributions for Health FSA, HRA, dental or vision, HAS and Archer MSA, long-term care, on-site medical clinics, church plans or governmental plans.
1/1/2015 – ACA Reporting Provisions go into Effect: Reporting provisions under tax code sections 6055 and 6056 go into effect. 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.
1/1/2015 – Flexible Spending Account Limits and Extensions: The employee health flexible spending account (FSA) contribution limit has been increased to $2,550 for 2015, and remains at $5,000 annually for dependent care FSA contributions. A new provision allows plans to offer a $500 health FSA carryover of unused amounts for the next plan year, providing the plan documents are amended and employees are notified prior to the beginning of the plan year. Alternatively, plans can offer a 2.5 month grace period for health and dependent care FSAs, again providing plan documents reflect this grace period and employees are notified.
1/1/2015 – Health Savings Account and High-Deductible Health Plan Limits: Health Savings Account (HSA) and High-Deductible Health Plan (HDHP) limits have been increased for 2015.
- The HSA annual contribution maximums increase to $3,350 for individual and $6,650 for family coverage.
- For HSA-compatible HDHPs, the annual out-of-pocket spending limits are $6,450 (individual) and $12,900 (family). The HDHP minimum deductible increases to $1,300 for individual and $2,600 for family coverage.
- HSA age 55 catch-up contributions stay at $1,000.
1/1/2015 – Retirement Plan Limits: The Internal Revenue Service has adjusted retirement plan limits. If you offer a retirement plan, verify and update your limits.
1/31/2015 – W-2 Employee Reports Due: Employers must provide all employees copies of Form W-2 reporting earnings and taxes for 2014 by January 31, 2015.
2/1/2015 – OSHA Form 300 A Accident Summary Posting: Employers must post OSHA Form 300A Accident Summary in a public area from February 1 through April 30 for previous year’s accidents (repeat annually).
2/15/2015 – Federal Market Place – Open Enrollment Ends: Individuals can enroll until February 15, 2015. After that, they can’t get 2015 coverage unless they qualify for a Special Enrollment Period.
3/1/2015 – 6/30/2015 – ACA Employer Assessment: Large employers with 100 or more full-time employees should conduct a detailed analysis of whether any further changes should be made in plan eligibility rules to satisfy the 95 percent threshold in 2016 (up from 70 percent in 2015) under the ACA’s employer shared responsibility provisions.
Employers with 50 to 99 full-time employees who previously qualified for transition relief from the ACA employer shared responsibility provisions should finalize assessment of any eligibility changes and employee premium rates, for purposes of the ACA employer shared responsibility provisions.
Beginning in 2016, those employers are subject to the penalties under the ACA’s “play or pay” mandate.
7/1/2015 – PCORI Fee Due: July 31 is the annual deadline for payment of the Patient Centered Outcomes Research Institute fee (PCORI fee) of $2 per covered life for the preceding plan year.
9/30/2015 – EEO-1 Report: Organizations with 100+ employees are to submit the EEO-1 report by September 30. Repeat annually. Repeat annually.
10/14/2015 – Medicare Part D Notice: Employers are to provide notice to all Part D eligible individuals, or those about to become eligible, prior to October 15 of each year who is covered by an employer health plan with outpatient prescription drug coverage, regardless of whether the employer coverage is primary or secondary to Medicare. The notice must be provided to all Part D eligible individuals, whether covered as active employees, retirees, COBRA recipients, disabled indivdiuals, or as dependents. Plan participants are Part D eligible if they are 65 or more years old, three months before turning age 65, and/or if they are disabled.
Note: If you provided participants with the all-in-one Employee Notification service provided by HR Service, Inc., this notice is included.
Varies, based upon plan year – Form 5500: File Form 5500 annually, by the last day of the 7th month following the end of the plan year (e.g., July 31 for calendar year plans).
For additional information, employee notices, links, and renewal reminders, login to our service at
To download the Compliance Calendar for 2015, click here.
House passes bill offering smaller employers relief from ACA coverage mandate
Originally posted January 7, 2015 by Jerry Geisel on Business Insurance
More small employers would be shielded from a health care reform law provision that requires employers to offer coverage or be liable for a stiff financial penalty under veterans-related legislation approved by the House of Representatives.
Under the Patient Protection and Affordable Care Act, employers with at least 100 full-time employees must offer coverage or be liable for a $2,000 per employee penalty, starting this year. In 2016, the 100-employee threshold for the so-called employer mandate drops to 50 employees and remains at that level in succeeding years.
Under the legislation, H.R. 22, introduced by Rep. Rodney Davis, R-Ill., and passed on a 412-0 vote Tuesday, employees who due to their military service receive health care coverage from the U.S. Department of Veterans Affairs or the federal Tricare program would not be counted in calculating whether their employers hit the employment count threshold that triggers the ACA employer coverage mandate.
Passage of the legislation will give smaller employers an additional incentive to hire veterans, Rep. Davis said in a statement.
A companion bill was introduced in the Senate on Wednesday by Sen. Roy Blunt, R-Mo.
The House last year passed an identical bill, but it was not taken up by the Senate.
ACA employer mandate in action: Avoiding the missteps of 2014
Originally posted December 12, 2014, by Deborah Hyde on Employee Benefit News.
Soon we will be ushering in the New Year, which marks the first for the roll-out of the employer shared responsibility provisions under the Affordable Care Act. Though numerous guidelines were put forth to inform employers of how to satisfy the requirements under this employer mandate, 2014 also provided an opportunity to understand ways in which employers will fail (or at the very least, struggle) to meet these same obligations.
Cutting corners
Faced with the requirement to provide medical coverage to an expanded population of employees, some employers sought strategies that required the least amount of commitment while still meeting the demands of the law. “Skinny” or “minimum value” plans were just such a strategy, as these plans provided the absolute minimum amount of coverage to employees. The IRS and the Department of Labor, however, swiftly came down on these plans and stated that these plans do not meet the minimum standards contemplated by the ACA and therefore fail to satisfy the employer mandate.
Similarly, employers considered reimbursement arrangements as a way to provide funding for employees’ health expenses while avoiding the obligation to put in place a group plan. On several occasions, however, the government made clear that stand-alone reimbursement arrangements fail to comply with the ACA, regardless of whether done on a pre- or post-tax basis. Simply put, the IRS and DOL made clear in 2014 that cutting corners won’t “make the cut” at all.
Delaying the inevitable
Despite the overwhelming amount of rules that employers are facing, there are more on the horizon. Enforcement of certain provisions under the ACA has been delayed, and while this allows employers more time to prepare, employers should not postpone the creation of a competent strategy. For example, the ACA extends nondiscrimination rules to fully-insured plans. The federal government has stated that these nondiscrimination rules will not be enforced until more information thorough guidelines is provided, but employers would be wise to keep these rules in mind when designing health plans and avoid the need for a total re-design in the future.
In addition, Section 6055 and 6056 reporting to the IRS is not required until 2016. This requirement is over a year away, but employers need to be diligent in their preparations to efficiently and effectively meet this obligation. Putting in place a reliable HR reporting system now will avoid an unnecessary scramble later.
Denying the current Reality
The most detrimental strategy for compliance is for employers to deny the need to comply altogether. By now, it is clear that the employer mandate will be in effect in a matter of weeks. Employers should not hold out for significant changes to, or even a complete repeal of, the current law. A now-Republican majority in Congress brings with it much grandstanding and political rhetoric concerning a repeal of the ACA, but such discussion should be taken with a grain of salt. Any overhaul to the existing law won’t be seen for some time – if at all. And though the U.S. Supreme Court will soon be hearing arguments regarding the role of federally-established marketplace exchanges, the Court’s decision is not only many months away, but is unlikely to result in the unraveling of the employer mandate.
2015 will be the first year of enforcement for the employer shared responsibility rule, but in many instances, 2014 served as a prime guide for employers by highlighting not only the steps to take, but also the steps to avoid, in creating a successful compliance strategy.
Dental gap: Coverage slips through reform's cracks
Originally post December 9, 2014 by Bob Herman on www.businessinsider.com.
Dental care is a peculiar niche of the U.S. healthcare system. Even though teeth and gums are just as much part of the human body as kidneys or elbows, they are insured differently — a lot differently.
When the Patient Protection and Affordable Care Act was written and debated, comprehensive dental insurance never really became a focal point. Lawmakers ultimately created a few provisions that may boost access to oral care, but dental coverage still escapes the grasp of millions of Americans.
Dental plans garnered national attention after it was discovered that HHS overstated 2014 enrollment figures in the ACA's insurance exchanges. The government included almost 400,000 stand-alone dental plans, which are much cheaper and separate from standard health plans. After accounting for those, the number of people who were enrolled in full-service medical plans was 6.7 million. A House committee plans to grill CMS Administrator Marilyn Tavenner on the numbers Tuesday.
Lost in that discussion, however, is the question of how much the law has done to advance dental care. Not enough, advocates argue.
The Affordable Care Act mandated pediatric dental services as one of the 10 essential health benefits for health plans, but adult dental services were excluded. In addition, all health plans must cover oral health risk assessments for children up to 10 years old with no copayment, coinsurance or deductible. The law also allowed states to expand Medicaid and its related dental benefits to more low-income children and adults.
But large gaps in coverage remain, primarily for adults who don't qualify for Medicaid. “More children have been enrolled (in dental plans) through the Affordable Care Act,” said Maxine Feinberg, president of the American Dental Association. “However, it really only helped adults in a minimal way.”
About 187 million people have some form of dental insurance, according to the National Association of Dental Plans. Coverage is provided through two main outlets: employers or public programs like Medicaid and the Children's Health Insurance Program.
A majority of people who have dental insurance get it through their employer. Almost nine in 10 employers with 200 or more workers and about half of all companies offer dental benefits, according to the Kaiser Family Foundation. The most common forms of coverage are like “prepaid gift cards,” Feinberg said. Routine cleanings and other preventive services are completely covered, and all other dental care needs are covered up to a yearly maximum figure.
But that leaves about 130 million Americans who have to pay for their dental care completely out of pocket or rely on supplemental dental policies. That figure includes millions of Medicare beneficiaries. Traditional Medicare does not cover dental care unless it's an emergency procedure during a hospital stay.
Medicare, Medicaid pitfalls
Cost and a lack of dental providers are cited as the key barriers for obtaining care. In some instances, the results have been lethal. The most famous case was Deamonte Driver, a 12-year-old boy in Maryland who died in 2007 after bacteria from an infected tooth spread to his brain. Deamonte's family lost its Medicaid coverage. More recently, in 2011, Kyle Willis, 24, died in Ohio after a wisdom tooth infection forced him to the emergency department. Mr. Willis had no insurance and couldn't afford antibiotics.
Ultimately, the Affordable Care Act is expected to bring some kind of dental coverage to 8.7 million kids and 17.7 million adults by 2018, according to an ADA-commissioned analysis conducted by actuarial consulting firm Milliman. A vast majority of those gains will be through Medicaid expansion, and some asterisks apply.
Medicaid dental benefits for adults vary widely in each state. Some states like Connecticut and New York offer extensive coverage that includes preventive cleanings and restorative services like fillings and crowns. But others offer zero dental coverage, or only cover emergency services that relieve tooth pain and infection. That means many people who live in states expanding Medicaid eligibility may only benefit marginally, and some others in non-expansion states won't benefit at all. The ADA study said of the 26 states expanding Medicaid, nine provide “extensive” adult dental benefits.
The scenario also assumes patients can find dentists accepting Medicaid. Only one-third of practicing dentists take Medicaid patients due to lower reimbursement rates.
Dr. Richard Manski, a dentistry professor at the University of Maryland who has studied dental insurance said the state programs that prioritize dental care actually offer “robust” coverage. But “the problem with the Medicaid plans is there's always a fixed pot of money,” he said.
Dental benefits are often the first to get cut when states need to get their Medicaid budgets in order. Even the federal government has encouraged state Medicaid programs to tinker with their dental care benefits when money gets thin. In 2011, then-HHS Secretary Kathleen Sebelius wrote letters to governors saying that limiting or eliminating dental care benefits is an effective way to save Medicaid funds.
The impact of the ACA's exchanges on dental care is similarly cloudy. Although dental benefits for children up to age 19 are required for all health plans sold on the individual and small-group markets, each exchange can take a different approach, said Colin Reusch, senior policy analyst at the Children's Dental Health Project. Some exchanges require health insurers to embed pediatric dental coverage. Others allow the benefits to be sold in stand-alone policies, requiring people to pay a separate premium.
The average cost differential between a medical policy with embedded dental coverage and a medical policy without dental coverage on the federally run exchanges ranges from $33.45 per month for a family with one child to $70.05 for a family with three or more children, said Evelyn Ireland, executive director of the National Association of Dental Plans.
Mr. Reusch said he's hopeful the gap between dental and medical care can be bridged, even though the ACA will leave many without dental insurance and nothing has changed with Medicare. Providers in accountable care organizations or patient-centered medical homes are now somewhat responsible for the oral health of patients, especially if dental issues ultimately lead to more complex health problems.
“In the long term, that's really beneficial in terms of shifting the oral healthcare delivery system towards integration, which is where we want to go,” Mr. Reusch said.