The ACA and What Comes Next 2014 EPSHRM BENEFITS CONFERENCE

The ACA and What Comes Next

2014 EPSHRM BENEFITS CONFERENCE

© 2014 EPSTEIN BECKER GREEN, P.C. ALL RIGHTS RESERVED. ATTORNEY ADVERTISING .

This presentation has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal, state, and/or local laws that may impose additional obligations on you and your company.

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1. Shared Responsibility Determining applicable large employer status Determining full-time employees Determining liability The impact of final rules

2. What's Next ERISA 510 Scams Halbig Cadillac Tax Exchanges

3. Closing Remarks

Agenda /


• Three ACA requirements were delayed:

• The delay is over, for most employers compliance begins 1/1/15

ACA Implementation /EMPLOYER MANDATE DELAY

Section 4980H of IRS Code

Section 6056 ofIRS Code

Section 6055 of IRS Code

Employer shared responsibility provisions

Information reporting requirements which are

linked to employer mandate

Information reporting requirements which apply to self-insuring employers, insurers, and certain other

providers of “minimum essential coverage”


ACA Implementation /EMPLOYER MANDATE ANALYSIS

Step 1 Does This Apply to My Business?

Step 2 To Whom Must I Offer Coverage?

Step 3 Is My Coverage Affordable?

Does My Coverage Provide MV?

Step 4What is The Cost of

Not Providing Coverage?

What are the Non-Economic Factors

at Play?


Shared Responsibility provides that “Applicable Large Employers” with 50 or more Full-Time (including Full-Time Equivalent) employees are subject to a tax penalty if any Full-Time Employee receives a premium tax credit or cost-sharing reduction to purchase coverage through an Exchange

Full-Time employee is eligible for a cost sharing subsidy if: An employer does not “Offer” Full-Time employees (and their

dependents) the opportunity to enroll; or An employer offers its Full-Time employees the opportunity to

enroll but coverage is “Unaffordable” or does not provide “Minimum Value”

Shared Responsibility /THE BASIC IDEA


SHARED RESPONSIBILITY:

Does This Apply to My Business?


Applicable Large Employer (ALE)= 50 or more full-time employees* or Combination of full-time and part-time employees that equals 50

“full-time equivalent employees” “Full-time equivalent employees” only relevant for purposes

of determining ALE Penalties are based only on full-time employees

ALE is determined based on actual hours worked by employees in the prior calendar year

Applicable Large Employer /QUALIFICATION CRITERIA


For 2015 only: an employer with 50 to 99 full-time employees or equivalents does not need to comply with the Employer Mandate

To Qualify for Transitional Relief: Cannot reduce the size of workforce or overall hours of service Cannot eliminate or materially reduce any health coverage offered

as of February 9, 2014

Applicable Large Employer /TRANSITION RELIEF


FTE: for each month in the prior year, an employer must total the number of hours worked by part-time employees and divide by 120. Then add to number of full-time employees. The final regulations allow employers to round the to the nearest

hundredth Example: an employer with 30.544 full-time equivalents in a calendar

month may round this figure to 30.54 Timing: Employers are to make these calculations annually to

determine if they are an ALE for the next year. Example: If an employer has more than 50 full-time employees in 2014,

it will be considered an ALE for 2015.

Applicable Large Employer /CALCULATING EMPLOYER STATUS



Defining Full-Time Employees…


“Full-Time Employee” means, with respect to any month, an employee who is employed on average at least 30 hours of service per week Recent legislative movement to redefine full-time employee Administration has said it will veto any bill increasing threshold Unclear whether deadlock broken if Senate change control

“Hours of Service” includes: Paid for performance of services, or entitled to payment even when no

work is performed Paid on account of time during which no duties are performed – vacation,

sick, holiday, etc. Special rules for FMLA, USSERA & Jury Duty

Full-Time Employees /HOURS OF SERVICE DEFINITION


Full-Time Employees /CALCULATION METHODOLOGY

The final regulations provide two methods for calculating hours of service:

METHODOLOGY 1 METHODOLOGY 2

The monthly measurement method

The look-back measurement method


STEP 1: If an employee is reasonably expected at his or her start date to be full-time, then an employer must offer coverage after three months of employment Whether or not an employee is reasonably expected to be full-

time depends on the surrounding facts and circumstances, including (but not limited to): Whether the employee is replacing a full-time employee and Whether the job was advertised as requiring 30 or more

hours of service per week

Calculation Methodology /LOOK BACK MEASUREMENT METHOD


STEP 2: If unable to determine full-time status at Step 1, employers may select a period of time between three months and one year to use as a “measurement period.”

If the employer determines that an employee was employed on average at least 30 hours of service per week during the “measurement period,” then the employer must treat the employee as a “full-time” employee during a corresponding “stability period,” regardless of the number of hours of service the individual works over that time period The duration of stability period would be at least the greater of six

consecutive calendar months or the length of the standard measurement period

Generally, an employer must apply the same Look Back Period to all employees, but different periods may be used for certain categories of employees

Calculation Methodology /LOOK BACK MEASUREMENT METHOD


Whether an employee is “reasonably expected” to be full-time is a judgment call Carefully document reasons for decision Treat all similarly situated employees the same Never a penalty for offering coverage

If unsure solicit comment from counsel

Transition Relief /For stability periods that begin in 2015, even those that are

twelve months, employers may use a transition measurement period that is six months

Look Back Measurement Method /PRACTICE POINT


Seasonal Employees Employers may apply the look-back measurement method

to seasonal employees in the same manner as variable hour employees

The final regulations clarify that, for these purposes, a seasonal employee is one in a position for which the customary annual employment is six months or less

Look Back Measurement Method /PRACTICE POINT RE: SEASONAL EMPLOYEES


Rehired Employees and Breaks in Service If an employee resumes providing service after a period during

which the employee was not credited with any hours of service, then the employee may be treated as a new employee. The final regulations reduce this period of time from 26 weeks to 13 weeks Additionally, if an employee is rehired after at least four

consecutive weeks, then he or she may be treated as a new employee if that period exceeded the number of weeks of employment with the applicable large employer immediately preceding the break in service.

Look Back Measurement Method /PRACTICE POINT RE: SEASONAL EMPLOYEES


If an unintended employee receives a subsidy Employers may not take unfavorable employment action or

retaliate against an employee or applicant who: Provided information that the employee reasonably believed

concerned a violation of ACA Title I to the employer, the federal government, or any state attorney general

Testified, assisted or participated in a proceeding concerning a Title I violation

Objects or refuses to participate in any activity the employee/applicant reasonably believes to violate Title I

Receives a credit under §36B of IRC or a cost sharing reduction under ACA §1402 Only two ways for full-time employee to get subsidy

Look Back Measurement Method /PRACTICE POINT



What Are My Obligations as Employer?


ALE is treated as offering coverage to its full-time employees (and their dependents) for a month if it offers coverage to all but five percent, or if greater, five, of its full-time employees for that month. You must offer 95% of your full-time employees coverage to avoid the offer prong of mandate

Even if an ALE offers full-time employees the opportunity to enroll in coverage, liability may still be imposed on the basis of such coverage being either unaffordable or not providing minimum value

The Employer Mandate /THE BASICS


For 2015 only, the final regulations provide that applicable large employers only need to offer coverage to 70 percent of full-time employees instead of 95 percent. For 2016 and beyond, the 95 percent requirement will take full effect

Employers with plan years that do not start on January 1 may begin compliance with the employer mandate at the start of their plan years in 2015, rather than on January 1, 2015

The Employer Mandate /TRANSITION RELIEF


The employer mandate requires applicable large employers to offer coverage to dependents of full-time employees Dependents include children who have not reached the age of 26, but not

spouses The final regulations exclude both foster children and

stepchildren from the definition of dependent for purposes of the employer mandate

The Employer Mandate /OFFER OF COVERAGE & DEPENDENT COVERAGE


The Employer Mandate /TRANSITION RELIEF

2015For 2015 only, the final regulations provide that applicable large employers do not need to offer coverage to dependents

2016 For 2016 and beyond, the requirement to offer coverage to dependents will take full effect


A plan is considered affordable if the employee’s premium obligation for self-only coverage does not exceed 9.5 percent of the employee’s household modified adjusted gross household income

If an employer offers multiple healthcare coverage options, the affordability test applies to the lowest-cost option available to the employee that also meets the minimum value requirement

Plan Affordability /


Employers generally will not know employees’ household incomes. Therefore, the final regulations provide for three affordability safe harbors that are based on information available to employers:

Plan Affordability /

Form W-2 wages safe harbor

Rate of pay safe harbor

Federal poverty line safe harbor

Coverage meets the affordability standard if the employee’s share of the premium does not exceed 9.5 percent of the amount reported in Box 1 of Form W-2

Coverage meets the affordability standard if the employee’s share of the premium does not exceed

9.5 percent of the employee’s monthly salary or 130 times the

lowest hourly rate paid the employee during the month

Coverage meets the affordability standard if the employee’s share of the premium does not exceed

9.5 percent of the federal poverty line for a single

individual


The Final Rule sets forth the following methodologies to determine the MV (total allowed costs of benefits provided is no less than 60 percent): • MV Calculator, which is available at

http://cciio.cms.gov/resources/regulations/index.html/#pm;• Any safe harbor established by HHS and the IRS;• Certification by an actuary, which is only available if the plan contains

non-standard features that are not suitable for the MV calculator or safe harbor checklists. If this options is used, the determination must be made by a member of the American Academy of Actuaries; or

• Any plan in the small group market that meets any of the “metal levels” of coverage based on the MV Calculator

Minimum Value /

http://cciio.cms.gov/resources/regulations/index.html/#pm


For employers who offer coverage to less than 95 percent of full-time employees, the penalty will be calculated according to the following formula if at least one full-time employee receives a premium tax credit for getting coverage on an exchange:

Calculating Penalties /FAILURE TO OFFER COVERAGE

Number of full-time employees

the employer employed for

the year

Up to 30 $2,000 PENALTY


For employers who offer coverage to at least 95 percent of full-time employees but must pay a penalty on the basis of the coverage being unaffordable or not providing minimum value, the penalty will be calculated separately for each month according to the following formula if at least one full-time employee receives a premium tax credit for getting coverage on an exchange:

The penalty for any calendar month is capped at the penalty the employer would have paid had it not offered coverage

Calculating Penalties /UNAFFORDABLE COVERAGE OR FAILS TO MEET MINIMUM VALUE

Number of full-time

employees who received

a premium tax credit for that month

1/12 of $3,000 PENALTY


What’s Next?


• The Employer’s obligation under the employer mandate applicable only to “Full-Time” employees

• To reduce penalty exposure or number of employees eligible for plan, some employers may reduce employee hours.

• Part-Time= No Offer, No Penalty???

ERISA 510 /

Statutory Text /

“It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan..., or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.” 29 USC § 1140

Purpose of 510 /“These provisions were added by the Committee in the face of evidence that in some plans a worker’s pension rights or the expectation of those rights were interfered with by the use of economic sanctions or violent reprisals. Although the instances of these occurrences are relatively small in number...” S. Rep. No. 93-127, 93d Cong., 2d Sess. (1974).“[p]revent unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.” West v Butler, 621 F.2d 240, 245 (6th Cir. 1980).

510 Claims /Issue: An employers workforce management efforts interfered with an employee’s attainment of a right to which such participant is or may become entitled. • Risk is likely stratified based on employment:

– Highest risk: current full-time reduced below 30– Medium risk: on-going part-time employee capped

at 28 hours– Lowest risk: new employee hired with a 28 hour cap

Employer Options /• Manage communications around workforce management to avoid “specific

intent” arguments– Avoid making public statements on your benefit strategy– Package all workforce management in legitimate business needs– Consider avoidance of “capping” or “cutting.” Recent delay may allow for more of a

glide path to under 30– To extent possible protect internal decision making documentation– Centralize communication: organization should have single voice

• Grandfather current 30 hour employees– Move to a new part-time strategy moving forward

• Revise employment agreements to reflect employee status– New hires and on-going part-time

• Legislative and regulatory solutions???– Protect precedent

Scams /• Employer Payment Plans

– Employer reimburses employees for the premiums they pay to purchase their own plan on the open market.

– These are group health plans. The IRS has said cannot be combined with open market coverage to satisfy market reforms

– Subject to a $100/day excise tax per applicable employee (which is $36,500 per year, per employee) under

Scams/• Drug Importation

– Number of variations on these programs but they all involve the direct shipment of foreign prescriptions to employees.

– The Food Drug and Cosmetic Act (“FDCA”) prohibits the interstate shipment (which includes importation) of unapproved new drugs. Unapproved new drugs are any drugs, including foreign-made versions of US approved drugs, that have not been manufactured in accordance with and pursuant to an FDA approval.

– What is Legal in Canada, right???– Recent enforcement against mail carriers (FedEx $820 Million law

suit)– Ominous warnings to group health plans

Scams/• Incentive Schemes

– Employers must offer their full-time employees an “effective opportunity to elect to enroll” in coverage.

– There are a number of programs that are being marketed to employers that seek to offer full-time employees an incentive to decline the opportunity to enroll in coverage.

– Usually come with literature for employer and employee.

– Penalty the same as not offering coverage.

Scams/• Classification Schemes

– The employer mandate only applies to full-time employees and does not extend to independent contractors or leased employees.

– Simple just reclassify workforce as independent contractors– The employer mandate does not rely upon classifications,

rather the long established IRS test for determining whether an employment relationship exists is controlling.

– Some schemes come with new employment agreements or creation of shell companies do to employing.

– Same penalty as not providing coverage.

House of Cards /How Big is Halbig

• Last month, federal appeals courts issued conflicting opinions on a key aspect of the ACA.

• The heart of the dispute centers on the statutory text of the ACA itself. According to the ACA, penalties under the employer mandate are triggered only if an employee receives a subsidy to purchase coverage “through an Exchange established by the State under section 1311” of the ACA.


• If a state elected not to establish an exchange or was unable to establish an exchange, the Secretary of HHS was required to establish a “federal facilitated exchange” under section 1321 of the ACA.

• Thus, subsidies provided through federally facilitated exchanges would originate from an exchange established under section 1321 of the ACA not through an exchange established by the state under section 1311.


• In 2012, the IRS asserted that “the statutory language … and other provisions” of the ACA “support the interpretation” that credits are available to taxpayers who obtain coverage through both state and federally facilitated exchanges.

• The plaintiffs in both cases argue that the IRS does not have the authority to administer subsidies in states that did not establish a state-run exchange because the exchanges were not “established by the State under 1311.”


• The D.C. Circuit, in Halbig v. Burwell agreed with the appellants and vacated the IRS regulation. – The court focused heavily on the plain meaning of the

statutory text and concluded “that the ACA unambiguously restricts the ... subsidy to insurance purchased on Exchanges established by the state.”

• The 4th Circuit, in King v. Burwell agreed with the IRS that the statutory language was not plain, but ambiguous. – Accordingly, the court upheld the subsidies “as a permissive

exercise of the agency’s discretion.”


• The Administration has sought en banc review of the Halbig decision by the entire D.C. Circuit. – If the full D.C. Circuit reverses the Halbig decision, the

existing “circuit split” would be resolved. • Rule of 4: Only four justices are required to grant

cert.– In NFIB v. Sebelius four justices voted to overturn the

individual mandate. If those same four justices voted to grant certiorari this line of cases would be heard.


• Employer mandate penalties are triggered only if an employee receives a subsidy to purchase coverage through an exchange.

• Accordingly, if subsidies are unavailable, then no penalties could be triggered against an employer in the 36 states with a federally facilitated exchanges.

Cadillac Tax/Law of Unintended Consequences

• Beginning in 2018, employer-sponsored plans will be subject to a 40 percent non-deductible excise tax on the dollar amount of coverage that exceeds certain specified thresholds. – 2018 threshold for individual coverage is $10,200 and

the threshold for family coverage is $27,500.• Adjusted upwards for early retirees and individuals in high-

risk professions• Multiemployer plans will be treated as family coverage for

purposes of the Cadillac tax.

Cadillac Tax/Law of Unintended Consequences

• As one of the Affordable Care Act’s principal “pay-fors,” the Cadillac tax is expected to raise $111 billion ($80 billion) over 10 years.

• Was designed to apply to “Cadillac health plans,” high-end health plans that provide the most generous level of benefits to employees.– Critics argue it was designed to end employer sponsored system.

• In practice, the Cadillac tax will affect far more modest plans and could be a significant burden on all employers

• Takeaway: While regulations implementing this provision are still a ways off, plans will need to take action in the near future to avoid penalties.

Cadillac Tax/How Does It Work?

• The Cadillac tax applies to the dollar amount that exceeds the specified threshold using the following formula:

• “The aggregate cost of the applicable employer sponsored coverage of the employee for the month, over

• An amount equal to 1/12 of the annual limitation for the calendar year in which the month occurs.”

• Example: If an employer offered individual coverage that cost $12,000 per employee, the excess amount for a month would be calculated by ($12,000 / 12 months) − ($10,200 / 12) = $150. Therefore, the employer would be taxed 40 percent of $150, or $60 per employee per month. Over a year, the Cadillac tax liability per employee would be $720.

Cadillac Tax/To Whom Does it Apply?

• The ACA states that each “coverage provider” is responsible for payment of the tax.– In the context of insured group health plans, the coverage provider

is the health insurance issuer. – For self-insured plans, the entity that administers the plan is the

covered provider responsible for payment of the tax. In most cases, TPA will be responsible.

– In the case of multiemployer plans, the plan’s insurer or administrator will be responsible for paying the tax.

• While the penalties may technically apply to the health insurance issuer or TPA, it is likely that the cost of the penalties will be passed down to the employer.

Cadillac Tax/What Benefits Are Included in the Calculation?

• The Cadillac Tax applies to “applicable employer-sponsored coverage.”

• Applicable employer-sponsored coverage includes coverage under any group health plan made available to the employee by an employer which is excludable from the employee’s gross income or would be excludable if it were employer-provided coverage.– Major medical coverage and coverage provided under account-based

plans (e.g., FSAs and HSAs) are likely includable in the calculations.– Unclear if other benefits such as wellness programs, EAPs, or on-site

clinics will be includable.– Coverage for long-term care, stand-alone vision and dental, and non-

coordinated benefits (e.g., hospital indemnity) are exempt.

Cadillac Tax/How is Cost Calculated

• Until the regulations are released it is unclear how the cost of applicable employer-provided coverage will be calculated.

• The ACA does say that the cost of coverage will be determined under rules similar to the rules used for calculating cost of coverage under COBRA.– Employers may use these rules as a gauge to

determine whether their plans may exceed the thresholds prior to the release of regulations.

Cadillac Tax/How do I Prepare

• Use COBRA costs to determine plan status– Understand (given current medical inflation) your timeline for

meeting thresholds• Look at benefits offerings for potential efficiencies.

– Utilization – Richness of benefit offerings– Population health management opportunities– Value based insurance offerings

• Compare cost strategies to recruitment and retention strategy• Union employers- this discussion need to be reflected in next

negotiations.

HPID/One More Thing To Do

• Regulations promulgated in 2012 require most self-funded group health plans to obtain a Health Plan Identification Number (“HPID”) by November 5, 2014.– Small health plans with annual receipts of less than

$5 million have an extra year to comply. • While insured group health plans must also

obtain an HPID, that responsibility will fall on their insurers.

HPID/What is an HPID

• Section 1104(c)(1) of the Affordable Care Act (“ACA”) required the Secretary of HHS to establish a standard unique health plan identifier for use in HIPAA standard transactions.

• The goal of this provision is to standardize the way in which health plans are identified in HIPAA standard transactions to reduce delay and errors caused by: improper routing of transactions; rejected transactions due to insurance identification errors; difficulty in determining patient eligibility; and challenges resulting from errors in identifying the correct plan during claims processing.

HPID/Who Must Obtain an HPID?

• Any entity that meets the definition of “Controlling Health Plan” (“CHP”) must obtain an HPID. – The regulatory definition of “Health Plan” was taken from

the HIPAA rules and specifically applies to self-insured group health plans.

– Because few plans complete their own standard transactions, the HPID will most likely be used by their TPA to identify the plan when necessary in standard transactions.

– The regulations warn that the CHPs themselves and not the TPAs must obtain an HPID.

HPID/Who Must Obtain an HPID?

• An employer may offer multiple plans and options. As a result, the rules differentiate between health plan entities that are required to obtain an HPID (CHPs) and those that would be eligible, but not required, to obtain an HPID (subhealth plans).

HPID/Controlling Health Plan?

• A CHP means a health plan that: (1) controls its own business activities, actions, or policies; OR (2) (i) is controlled by an entity that is not a health plan; and (ii) if it has subhealth plans, exercises sufficient control over the subhealth plans to direct their business activities, actions, or policies.

• While the definition of CHP does not provide much guidance to employers, the regulations suggest the following test to determine if an entity is a CHP. If the answer to both questions is “yes,” then the entity would meet the definition of CHP.– Does the entity itself meet the definition of health plan at 45 CFR § 160.103?– Does either the entity itself or a non-health plan organization control the

business activities, actions, or policies of the entity?• More guidance is coming...

HPID/How to Apply?

• HHS has established an on-line portal that employers must use to obtain their HPID.

• Additionally, HHS has created a number of online manuals, video presentations, and PowerPoints that will walk you through the application process.

• Prior to beginning the application process, we encourage employers to carefully review the documentation requirements available on the guidance website.


Health Insurance Exchanges/What is Coming For Employers

Exchanges are the so-called “centerpiece” of ACA In the first year, over 8 million people enrolled

28% of private plan enrollees are ages 18 to 34 The vast majority of individuals (65%) purchased “silver”

plans. Roughly 80% of individuals received a subsidy to

purchase coverage. Next open enrollment period is November 15, 2014–

February 15, 2015


Race Health Status Marital Status Language Educational Attainment

Employment Status

The majority are white

The majority are in relatively good health

Most are not married 1 in 5 speaks a language other than English at

home

Three-fourths do not hold a

college degree

More than half are employed

full-time

White Excellent/Very Good/ Good Married Non-English No College

DegreeEmployed Full-

Time

Exchange Populations DEMOGRAPHICS

What will individual exchange members look like? Median Age: 33, Median Income: 238% FPL

Sources: PwC HRI analysis for year 2021, Current Population Survey, Medical Expenditure Panel Survey and CBO


• The Individual Mandate became effective 1/1/2014– In order to qualify for a subsidy an individual cannot have

qualifying coverage offered through and employer. • The Employer Mandate becomes effective 1/1/2015 for

most employers– Because of 30 hour threshold many formerly benefits ineligible

employees will be offered coverage for the first time.• What does this coverage change do to exchange costs• What potential HR issues are present for employers as

employees are now required to switch to employer coverage.

Health Insurance Exchanges/What is Coming For Employers


Presented By /

Adam SolanderHealth Care & Life Sciences Practice

[email protected]

Documents

The ACA and What Comes Next 2014 EPSHRM BENEFITS CONFERENCE