Affordable Care Act

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Affordable Care Act

American Fidelity Assurance Company's goal is to be our customers' primary resource for managing challenges and changes resulting from the Patient Protection and Affordable Care Act (ACA) and rising health care costs. This website is a resource to help our customer groups focus on the steps you need to take today, find the answers you need, and plan for additional changes. We look forward to helping you during the months and years ahead.

Hot Topics

  • CBO Releases Analysis of Senate’s Better Care Reconciliation Act of 2017

    The Senate’s recently-released Better Care Reconciliation Act of 2017 received a score yesterday from the non-partisan Congressional Budget Office (CBO). The CBO reports that the bill would reduce the federal deficit by $321 billion over the next decade. This marks a significant increase over the $119 billion reduction afforded by the American Health Care Act passed in the House of Representatives in May.

    The bill is estimated to reduce federal spending by more than a trillion dollars, and would reduce revenue by $701 billion. The most significant savings are, as with the House bill, the result of reductions in Medicaid expenditures, as well as reductions in the subsidies available for individual insurance.

    The CBO report also estimates the impact of the bill on health insurance coverage; in 2018, 15 million more people would be uninsured than under current law. This number is expected to rise to 22 million by 2026. This number is slightly better than the score for the House bill, which put the 2026 estimate at 23 million more uninsured individuals.

    For an overview of both the House and Senate versions of the GOP health care bills, please view our whitepaper.

    American Fidelity is committed to providing our customers with up-to-date information on changes to the law. In the meantime, remember that the Patient Protection and Affordable Care Act (ACA) is still the law. Employers should continue current compliance efforts while watching and waiting for new developments.

    Need assistance planning for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

  • Senate Republicans Release Text of Health Care Plan

    Ending weeks of speculation, and amid rumors of a vote before the July 4 congressional recess, Senate Republicans have released the text of their health care repeal-and-replace effort. The bill rolls back or eliminates significant portions of the Patient Protection and Affordable Care Act (ACA), including a repeal of the penalties associated with the Employer Mandate and Individual Mandate retroactive to January 1, 2016.

    The bill bears some resemblance to its House predecessor, keeping many of its broad strokes while tweaking its details. It keeps, for example some of the same waivers for states, but excludes the waiver for community rating found in the House bill. It also seeks to phase out the ACA’s Medicaid expansion, but on a three-year timetable beginning in 2020, instead of an immediate stop that year. States would have the option to receive Medicaid funds on either a per capita basis or via a block grant. The Senate bill’s funding would grow more slowly than the House’s, meaning a smaller allotment.

    In addition to the similarities to the House bill, the Senate effort offers a number of modifications and outright departures:

    • More generous premium tax credits for lower income and older populations;
    • Increased state stability funds; and
    • Increased funding for substance abuse treatment and rehabilitation.

    The bill also repeals the ACA’s tax provisions, including the taxes the ACA imposed on medical devices and the health insurance tax.

    Questions remain about whether all of the bill’s provisions will pass muster under the watchful eye of the Senate Parliamentarian – the GOP’s actions remain limited by the rules of budget reconciliation, which would enable them to pass their bill with only 50 votes (plus the vote of Vice President Mike Pence to break a tie, if necessary).

    For a more in-depth look at both versions of the Republicans’ repeal-and-replace efforts, download our whitepaper.

    American Fidelity is committed to providing our customers with up-to-date information on changes to the law. In the meantime, remember that the ACA is still the law. Employers should continue current compliance efforts while watching and waiting for new developments.

    Need assistance planning for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

  • Congressional Budget Office releases score for American Health Care Act

    When the American Health Care Act (AHCA) was passed by the House of Representatives at the beginning of May, the bill’s final form had not yet been scored by the Congressional Budget Office (CBO). The CBO announced their score yesterday, and their analysis has given the Senate the information they need to move ahead with their own version of the bill.

    Under Senate rules, the bill is required to reduce the deficit by $2 billion over the next 10 years - $1 billion by each of two Senate committees. The CBO score, which anticipates savings of $119 billion over the next decade, paves the way for the Senate to attempt passing the bill through the budget reconciliation process. This number is lower than previous estimates for earlier versions of the bill, which anticipated a $151 billion in the federal deficit.

    The CBO report also included an estimate of coverage under the new legislation. The report released yesterday estimates 23 million fewer individuals will be covered by 2026 under the AHCA than are covered under the Patient Protection and Affordable Care Act (ACA). Scores of previous versions of the bill predicted 24 million fewer individuals would be covered in 2026.

    This slight improvement in the number of uninsured people is unlikely to alleviate pressure on moderate Republicans who opposed the bill’s previous iterations because of the rising number of uninsured individuals.

    The CBO report addresses the type of coverage likely to be available under the AHCA. In states that adopt waivers of existing ACA provisions, more people may have access to coverage that is cheaper, but less robust. Additionally, people with pre-existing health conditions could face higher premiums if they reside in a state that elects to waive current restrictions on pricing based on health status under the AHCA (if enacted).

    Senate Republicans have signaled an intent to introduce completely new legislation when the bill arrives in their chamber. They have assembled a group of 13 senators who represent both the party’s conservative and moderate wings tasked with developing a bill amenable across the GOP spectrum.

    American Fidelity is committed to providing our customers with up-to-date information on changes to the law. In the meantime, remember that the ACA is still the law. Employers should continue current compliance efforts while watching and waiting for new developments.

    Need assistance planning for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

  • House Passes American Health Care Act

    Six weeks after their first attempt to hold a vote on the American Health Care Act (AHCA), Congressional Republicans passed the bill in a 217 to 213 vote yesterday, moving forward with their campaign promises to repeal and replace the Patient Protection and Affordable Care Act (ACA).

    The passage comes after weeks of negotiation and the inclusion of the critical Meadows-MacArthur Amendment. Designed to appeal to conservative members of the party, the amendment allows states to apply for waivers to opt out of certain ACA requirements. States with waivers could:

    • Set higher ratios for premiums charged to older enrollees;
    • Specify their own list of essential health benefits applicable to the individual and small group markets;
    • Allow increased premiums based on health status in states that create or participate in a federal high-risk pool; resulting in potentially higher premiums for sicker people.

    The AHCA was also amended by Rep. Fred Upton (MI) to include $8 billion in additional funds to help cover costs for individuals with pre-existing conditions in states that receive a waiver.

    A detailed summary of all key provisions of the AHCA is available in our AHCA white paper.

    The AHCA’s ultimate prospects are still far from clear. There are questions as to whether Republicans can continue to use the “fast-track” budget reconciliation process to move the bill through the Senate with only a simple majority, or whether the changes introduced by the Meadows-MacArthur Amendment would require a 60 vote supermajority under Senate rules.

    American Fidelity is committed to providing our customers with up-to-date information on changes to the law. In the meantime, remember that the ACA is still the law. Employers should continue current compliance efforts while watching and waiting for new developments.

    Need assistance planning for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.
  • Republicans Announce Repeal and Replace Amendment

    On April 25th, Republicans in the House of Representatives (House) proposed the Meadows-MacArthur Amendment to the American Health Care Act (AHCA), introducing additional provisions to the proposed law. The AHCA is sometimes referred to as "repeal and replace" because it would begin the process of repealing and replacing the Patient Protection and Affordable Care Act (ACA). A more detailed summary of all key provisions of the AHCA is available in our AHCA white paper [insert link].

    The Meadows-MacArthur Amendment to the AHCA would allow states to apply for waivers to opt out of certain ACA requirements. States with waivers could:

    • Set higher ratios for premiums charged to older enrollees;
    • Specify their own list of essential health benefits applicable to the individual and small group markets;
    • Allow increased premiums based on health status in states that create or participate in a federal high-risk pool; resulting in potentially higher premiums for sicker people.

    States would qualify for the waivers by attesting that opting out would reduce premiums, increase enrollment in coverage, stabilize the health insurance market, stabilize premiums for individuals with pre-existing conditions, or increase the choice of health plans in the state.

    After introduction of the Meadows-MacArthur Amendment, the AHCA's ultimate prospects are still far from clear. While the compromise among Republican lawmakers which resulted in the Amendment may result in additional "yes" votes from the House's conservative Freedom Caucus members, the bill still needs at least 216 votes to pass the House. This means the bill must gain support from moderate Republicans outside the Freedom Caucus in order to be viable. Should the bill pass the House and move to the Senate, there are questions as to whether Republicans can continue to use the "fast-track" budget reconciliation process to move the bill through the Senate with only a simple majority, or whether the changes introduced by the Meadows-MacArthur Amendment would require a 60 vote supermajority under Senate rules.

    American Fidelity is committed to providing our customers with up-to-date information on changes to the law. In the meantime, remember taht the ACA is still the law. Employers should continue current compliance efforts while watching and waiting for new developments.

    Need assistance planning for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

  • GOP Leadership Pulls Repeal-and-Replace Measure

    What Happened?

    Facing near-certain failure in the House of Representatives Friday, House Speaker Paul Ryan pulled the American Health Care Act (AHCA) from consideration. This move comes after several days of negotiating over the bill’s final language failed to produce a consensus in the Republican Party.

    What’s Next?

    The Republican majority may go back to the drawing board, propose new or amended legislation, or could set aside the issue of health care reform for the time being to focus on other legislative priorities (such as tax reform). Some members of Republican leadership, most notably President Trump, have indicated a strong desire to move forward with other key elements of the party’s legislative agenda.

    What Should Employers Do?

    For now, the Patient Protection and Affordable Care Act (ACA) remains the law, and employers should continue current compliance efforts while watching for changes.

    Stay Informed

    American Fidelity remains committed to keeping our customers up-to-date on legislative developments. If you need assistance planning your employee benefits strategy, contact your American Fidelity representative or email HCR@americanfidelity.com.

  • IRS Issues New ACA Reporting Guidance for Employers

    The Internal Revenue Service (IRS) recently issued an updated set of Q&A responses detailing how employers should comply with reporting required under the Patient Protection and Affordable Care Act (ACA). Large employers (as well as employers of any size that sponsor self-insured coverage) are required to issue Form 1095 statements to individuals by March 2, 2017, and must file a transmittal (Form 1094) together with copies of all 1095 forms by February 28, 2017 (filing on paper) or March 31, 2017 (filing electronically).

    The updated Q&As emphasize that the IRS will begin sending notifications in early 2017 of potential employer penalties associated with the 2015 calendar year. Notifications for the 2016 calendar year will be sent later in 2017. Employers will have an opportunity to respond before penalties are assessed or a notice and demand for payment is made.

    The Q&A addresses common questions from employers about how to report information on the coverage offered to employees. The information in the updated Q&A does not differ from existing guidance, but it does provide clarity on how to handle certain reporting situations, such as employees who waive coverage, and insurance offers to retired employees. Find in-depth highlights on the following topics on our website, hcreducation.com:

    • New Hires and Terminations
    • Use of Safe Harbors
    • COBRA Continuation Coverage
    • Post-Employment Coverage
    • Reporting Waivers of Coverage

    New Hires and Terminations

    If an employee’s first day of employment is a day other than the first day of the month, then the employer may enter code 2D, “Employee in a section 4980H(b) Limited Non-Assessment Period,” on line 16 for that month. For terminations, if the offer of coverage would have continued if the employee had not terminated employment during the month, enter code 2B, “Employee not a full-time employee,” on line 16 for that month.

    Safe Harbors

    The Q&As emphasize that employers are not required to make an entry on line 16 of Form 1095-C. You may use line 16 to indicate that you qualify for an exception (known as a “safe harbor”) from a potential ACA penalty for that month. Thus, employers should enter the appropriate code on line 16 if any applies. But if no code is applicable for a given month, line 16 should be left blank.

    COBRA Continuation Coverage

    COBRA reporting depends on the reason an offer of COBRA continuation coverage was extended. If due to termination, COBRA is not reported as an offer of coverage on Form 1095-C, Part II. The employer would enter code 1H, “No offer of coverage,” on line 14, followed by code 2A, “Employee not employed during the month,” on line 16, for each month following the employee’s termination. COBRA due to a reduction in hours is reported on line 14 using the offer code applicable to the individuals who received the offer (generally only the individuals enrolled in coverage at the time of the reduction in hours). If self-insured, report enrollment in self-insured coverage on Form 1095-C, Part III.

    Post-Employment Coverage

    An offer of post-employment coverage that is made to a former employee upon termination of employment (such as at retirement) is not reported as an offer of coverage on Form 1095-C, Part II. Typically, this occurs when a full-time employee retires partway through the year. In this situation, the employer would report as usual for the months where the employee was full-time. After the employee’s retirement, enter code 1H, “No offer of coverage,” on line 14, followed by code 2A, “Employee not employed during the month,” on line 16, for each month that the former employee was offered post-employment coverage. If self-insured, report enrollment in self-insured coverage on Form 1095-C, Part III.

    Waivers of Coverage

    No specific code on the Form 1095-C indicates that a full-time employee was offered coverage but did not enroll. For employees who waive coverage, the employer simply enters the applicable indicator code on line 14 to report what type of coverage the employee was offered. The employer may also use line 16 to report that it qualifies for a safe harbor for any given month—but only if a safe harbor actually applies. The Instructions for Forms 1094-C and 1095-C explain when an employer may enter a code on line 16. For more information about using lines 14 and 16, see the Instructions for Forms 1094-C and 1095-C.

    Need assistance planning ahead for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

    American Fidelity Assurance Company does not provide tax or legal advice. While we’re happy to provide you with this general information about the Patient Protection and Affordable Care Act (ACA), given the complexity of these rules, we encourage you to contact your tax or legal counsel about how the new requirements apply to your specific plans or situation.

  • HHS Issues Out-of-Pocket Maximums

    The Patient Protection and Affordable Care Act (ACA) limits the amounts that participants in non-grandfathered health plans can be required to pay out-of-pocket for covered services. The Department of Health and Human Services (HHS) recently released new regulatory guidance relevant to employers looking ahead to medical plan renewals for the 2018 plan year. Employers planning for upcoming renewals will want to be aware of the newly announced out-of-pocket maximums applicable to non-grandfathered health plans.

    Who is Affected:

    The out-of-pocket maximum applies to all plans which do not have grandfathered status as defined by the ACA, including full insured, self-funded, large and small group plans. The limits do not apply to retiree-only plans.

    Annual Out-of-Pocket Maximums for 2018:

    Self-Only Coverage: The 2018 out-of-pocket maximum for individuals with self-only coverage will be $7,350 for self-only coverage (an increase of $200 from the $7,150 limit in 2017).

    Family Coverage: The 2018 out-of-pocket maximum for family or other than self-only coverage will be $14,700 (an increase of $400 from the $14,300 limit in 2017).

    Need assistance planning ahead for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

    American Fidelity Assurance Company does not provide tax or legal advice. While we’re happy to provide you with this general information about the Patient Protection and Affordable Care Act (ACA), given the complexity of these rules, we encourage you to contact your tax or legal counsel about how the new requirements apply to your specific plans or situation.

  • Update on ACA Repeal and Replace Activity

    After weeks of speculation, Republican lawmakers have taken the first steps toward repealing portions of the Patient Protection and Affordable Care Act (ACA). They opened the 115th Congress by passing a budget resolution intended to begin dismantling the ACA through the process of budget reconciliation. The bare-bones budget instructs four congressional committees to make changes to laws under their purview and reserves funds for future health care legislation. In short, GOP leaders are making good on their many promises to act quickly to repeal the ACA.

    What’s going to happen next?

    The four committees will have until January 27th to produce legislation implementing the health care reform instructions from the budget. This budget reconciliation legislation, then, will be what actually repeals the various portions of the ACA.

    A budget reconciliation bill can be passed by a simple majority, which the Republicans hold in both houses of Congress; budget measures cannot be filibustered, negating the last remaining option for Democrats to halt the repeal process. In order to use the reconciliation process, the legislation must be limited to provisions directly impacting budgetary issues. As such, the repeal legislation could target the Employer Mandate, the individual mandate penalty for not purchasing health coverage, the ACA expansion of Medicaid, tax credits to purchase Public Exchange (Marketplace) coverage, and other tax-related changes from the ACA.

    Recent comments by prominent Republicans, including the president-elect and House Speaker Paul Ryan, have signaled an intent to introduce legislation to replace the ACA at the same time as they vote to repeal it.

    This repeal effort – what it will constitute and what its timing will look like – is the source of the greatest uncertainty facing many of the measures included in the ACA. For six years, Republican leadership has pledged to repeal the ACA, but the party has been unable to coalesce around a single proposal for replacing it, nor is it in full agreement on a timeline for eliminating the act’s provisions. Complete repeal of the ACA, and most replacement proposals, would require a 60-vote supermajority in the Senate, which the Republicans cannot achieve without the aid of at least 8 Democrats.

    A vote on repeal (and potentially replacement) legislation is not expected until sometime in the spring, with estimates ranging from late February to April. The effective date of the repeal could be immediate or set for a future date perhaps two to four years from now, which could vary by provision.

    What’s the Bottom Line?

    While changes may be on the horizon, the ACA remains the law today. Top of mind for many large employers (with 50+ full-time equivalent employees) is the requirement to report information about their full-time employees, their offer of coverage, and coverage received during the 2016 calendar year using Forms 1094 and 1095. Remember the forms are due to employees by March 2, 2017, and to the IRS by February 28th if filing on paper, or by March 31st if filing electronically (as required for groups with 250 or more forms).

    Need Help?

    For employers who need assistance filling out their required Forms 1094 and 1095 (and do not use our AFcomply service), American Fidelity Administrative Services is offering a series of informational webinars about the rules. These webinars will cover each section of the forms, and a question-and-answer session will be held at the end of each presentation.

    Register here for the January 17, 2017 webinar.

    Register here for the February 2, 2017 webinar.

    We are committed to keeping you updated as changes occur to the ACA and the law continues to develop. For more information about the ACA requirements impacting employers, please visit HCReducation.com.

    This is only a brief summary that reflects our current understanding of select provisions of the law, often in the absence of regulations. All of the interpretations contained herein are subject to change as the appropriate agencies publish additional guidance.

    American Fidelity Assurance Company and American Fidelity Administrative Services, LLC do not provide tax or legal advice. While we’re happy to provide you with this general information about the Patient Protection and Affordable Care Act (ACA), given the complexity of these rules, we encourage you to contact your tax or legal counsel about how the new requirements apply to your specific plans or situation.

  • New Department of Labor Overtime Rule Delayed

    The Fair Labor Standards Act (FLSA) requires covered, nonexempt employees be paid at least 1.5 times the employee’s regular rate of pay for time worked over 40 hours in a workweek. Legal tests involving salary, job duties, and other factors must be met in order for an employee to be properly classified as exempt from federal overtime rules.

    A final rule which would have increased the FLSA salary threshold was slated to go into effect in December of 2016. This new rule raised the minimum salary for executive, administrative, and professional “white collar” employees to pass one of the legal tests to be considered exempt from federal overtime rules from $455 a week ($23,660 per year) to $913 per week ($47,476 per year). In addition, the final rule increased the total annual compensation required to pass one of the legal tests to be considered an exempt highly compensated employee from $100,000 to $134,004 per year, and provided for regular increases to these amounts.

    Just before the new rule was to take effect, a federal judge issued an injunction halting implementation of the final rule while the court determines the Department of Labor (DOL)’s authority to make the final rule as well as the final rule’s validity. DOL has appealed the injunction. Information about the final rule and the pending litigation is available from DOL at https://www.dol.gov/featured/overtime. One consequence of the delay is that the incoming presidential administration may decide not to enforce the final rule or may make changes via new rulemaking.

    While watching and waiting for new developments, employers should continue to follow the existing overtime rules, and should review existing policies and procedures to ensure that employees are properly classified for purposes of both the FLSA and any applicable state laws. Misclassification of non-exempt workers as exempt employees can subject employers to significant risk, including back wages, taxes, penalties, interest, and attorney fees should exempt employees not be paid overtime as required by the law.

    Need assistance planning ahead for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

  • What does the 2016 election mean for the future of the ACA?

    Republican victories in the 2016 elections – securing their control of both chambers of Congress and the presidency – have led to speculation about the future of the Patient Protection and Affordable Care Act (ACA). While we can only speculate about what might happen, we thought it might be helpful to share some of the possibilities, as well as our suggestion about what employers should be doing now.

    On its face, the matter of ACA activity appears to be straightforward: as the party in power, Republicans could well have the majority they need to enact the repeals they’ve promised. Whether those promises can be kept in the current balance of power, though, is more complex than it may seem and is subject to a number of variables.

    While the GOP essentially has full control of the White House and the House of Representatives, their majority in the Senate is short of the 60-vote super majority they would need to counter any filibusters by their Democratic opposition. Any new legislation would, in practice, require at least eight Democrats to vote with the Republican majority to be enacted.

    Possible Repeal and Replace Strategy

    Both President-elect Donald Trump and Senate Majority Leader Mitch McConnell have pledged to modify the ACA in the early days of the upcoming legislative session. Based on the current discussions, one possible path is for Republicans to use the budget reconciliation process to repeal certain ACA tax measures, which would only require 51 votes. Use of that process is limited to budget-related measures, though, so it could not be used to repeal the ACA in total.

    Republicans would likely follow that with new legislation to potentially repeal non-budget ACA rules and enact provisions to replace the current law. There is not yet agreement on what the replacement package should include, but we can look for ideas of what may be coming in the Republican Health Care Reform Task Force Blueprint and the Empowering Patients First Act bill introduced by Congressman Tom Price (who President-elect Trump has tapped for Secretary of Health and Human Services and asked to lead the ACA repeal and replace effort). Both proposals support encouraging employers to continue sponsoring health coverage, and we could see provisions to expand Health Savings Accounts and increased flexibility for offering employer wellness programs.

    How soon could this happen?

    It's possible for Congress (who returns on January 3, 2017) to have a reconciliation package ready for President Trump to sign on January 20, the day of the inauguration. That's the earliest changes could happen, but the process could take longer.

    Creating something new as part of the “replace” strategy will likely take one to two years, and most Republicans are saying closer to two years is likely. Remember, that assumes they are able to get the cooperation of at least eight Senate Democrats to vote for the bill, and a bipartisan negotiation may extend the process even further.

    The legislation may also include additional time to transition from the ACA to a new law. For example, if the legislation eliminates the Public Exchanges (Marketplaces), it would likely include time to develop and allow individuals to transition to an alternative source of coverage.

    What Does This Mean for Employer Reporting?

    If the budget reconciliation package repeals both the individual and employer mandate for 2016, then presumably there would be no need for employers to complete the 2016 reporting. However, there has been some discussion about repealing the Employer Mandate but perhaps not the Individual Mandate at this time. If that happens, the outlook on 2016 reporting is less clear.

    The reason for the reporting is to provide the Internal Revenue Service (IRS) with the information the agency needs to enforce both the Individual and Employer Mandates. If the Individual Mandate remains, presumably the IRS will still need to receive the health coverage information reported on the Forms 1094 and 1095, but perhaps not the information about who is considered a full-time employee. Insurers currently report the coverage information for fully-insured plans, and employers submit the coverage information for self-funded plans. Given that Republicans do not seem inclined to repeal the tax subsidies for Public Exchange coverage in the near term, the government also may need employers to continue reporting information about their offers of coverage. As such, regardless of the changes that are made, we will need to receive guidance from the IRS as to what reporting may still be required.

    What’s the Bottom Line?

    While changes may be on the horizon, the ACA remains the law today. At this time, large employers (with 50+ full-time equivalent employees) are still required to report information about their full-time employees, their offer of coverage, and coverage received during the 2016 calendar year using Forms 1094 and 1095.

    Employers may benefit from adopting a “work and see” strategy – continuing to work on their 2016 filings while keeping up with developments in the changing law. There is a significant amount of data to compile and employers may not have enough time to complete their work by the deadlines if they wait to start until after the inauguration. Remember the forms are due to employees by March 2, 2017, and to the IRS by February 28 if filing on paper, or by March 31, 2017 if filing electronically (as required for groups with 250 or more forms).

    This is only a brief summary that reflects our current understanding of select provisions of the law, often in the absence of regulations. All of the interpretations contained herein are subject to change as the appropriate agencies publish additional guidance. American Fidelity Administrative Services, LLC does not provide tax or legal advice. While we’re happy to provide you with this general information about the Patient Protection and Affordable Care Act (ACA), given the complexity of these rules, we encourage you to contact your tax or legal counsel about how the new requirements apply to your specific plans or situation.

  • IRS Issues Delay in Requirement to Furnish Form 1095 under ACA

    On Friday November 18, 2016, the Internal Revenue Service (IRS) announced an extension of the deadline to issue Forms 1095-B and 1095-C to individuals and employees for the 2016 tax year. The notice also extends the good-faith transition relief which was available for the 2015 Patient Protection and Affordable Care Act (ACA) filings to the 2016 information-reporting requirements.

    The extension is welcome news for employers struggling to gather and analyze the data required to create Form 1095. We urge you to make the most of this extra month and to keep working diligently to compile the information required to meet the March 2nd deadline. The extension of time to furnish 2016 Forms 1095-B and 1095-C will occur automatically and no request needs to be sent to the IRS. The IRS firmly stated that no further extensions to the due date for furnishing the 2016 Form 1095-B and the 2016 Form 1095-C to individuals will be available for the 2016 reporting period. In fact, the IRS will not formally respond to any such requests.

    There are two components to information reporting under the ACA: furnishing statements to employees, responsible individuals and the IRS using Form 1095, and filing with the IRS using Form 1094. Employers should note that the IRS did not extend the deadline for health coverage providers and employers to file Forms 1094-B and 1094-C (together with copies of all individual 1095 statements). Employers must still file Form 1094, with IRS copies of all Forms 1095 issued to employees, by February 28, 2017 (if filing on paper), or March 31, 2017 (if filing electronically). Extensions to this deadline may be requested by filing IRS From 8809 as soon as you know that a 30-day extension of time to file is needed, but no later than the filing deadline.

    The notice also explains that some individual taxpayers may not receive a Form 1095-B or Form 1095-C by the time they are ready to file their 2016 tax return. Taxpayers do not need to wait to receive Forms 1095-B and 1095-C before filing their returns. They may rely on other information received from their employer or other coverage provider for purposes of filing their returns, and should keep this information with their tax records (but need not submit it with their tax return).

  • IRS Releases Final ACA Forms and Instructions for 2016

    The IRS recently released the final forms and instructions large employers will use to meet their 2016 Employer Mandate reporting obligations under the Patient Protection and Affordable Care Act (ACA). Employers may now view final version of the following:

    Form 1095-C: individual employee statement used to report details of the health coverage offered to each employee who qualified as full-time under the ACA during 2016 and, for self-funded coverage, to report 2016 enrollment information for all participants covered under a self-funded plan.

    Form 1094-C: transmittal form used to report aggregated employer-level information on a month-by-month basis, including full-time employee count and whether the employer offered coverage during 2016 to “substantially all” full-time employees as defined by the ACA.

    The IRS also released final instructions for use in completing the 2016 forms. While the final instructions are substantially similar to the draft version released earlier this year, employers should take note of the following changes:

    Requests for a Waiver of the Electronic Filing Requirement: to request a waiver of the electronic filing requirement for filers of 250 or more Forms 1095-C, an employer must submit Form 8508 to the IRS at least 45 days before the due date of the return. Waiver requests will not be processed until January 1, 2017.

    Increased 2016 Penalty Amounts: each failure to distribute a Form 1095-C employee statement to employees and/or to file a copy of each statement with the IRS using Form 1094-C is subject to a penalty of $260/violation, up to a cap of $3,193,000.

    New Conditional Offer Codes for Form 1095-C: new codes 1J and 1K may be entered on line 14 of the 1095-C to more accurately describe conditional offers of coverage to an employee’s spouse.

    Enrollment by Non-Full-Time Employees in Self-Funded Coverage: Code 1G is used to report enrollment of individuals other than full-time employees in a self-funded health plan. The final instructions clarify that code 1G must either appear in the “All 12 months box” or in every monthly box.

    Affordability Safe Harbors: The final instructions warn employers not to enter an affordability safe harbor (codes 2F, 2G and 2H) on line 16 of Form 1095-C for any month in which the employer did not offer minimum essential coverage to at least 95% of its full-time employees and their dependents (that is, any month for which the “No” box is checked on Form 1094-C, Part III, column (a)).

    Post-Employment Coverage: the instructions clarify that coverage offered after termination of employment (including COBRA and retiree coverage) should not be entered as an offer of coverage on line 14 of the 1095-C.

    Individual statements (Form 1095-C) must be distributed to employees no later than January 31, 2017, and a copy of each Form 1095-C must be filed with the IRS along with the employer's Form 1094-C transmittal no later than February 28, 2017 if on paper (permitted for employers filing fewer than 250 returns) or March 31, 2017 if filing electronically (required if filing 250 or more returns).

    For more information about this and other regulatory developments, please click here.

  • HHS Addresses Employer Appeals under ACA and Releases Sample Subsidy Notice

    As most large employers are now well aware, the trigger for penalties imposed by the Patient Protection and Affordable Care Act (ACA) is receipt of financial assistance in the form of an advanced premium tax credit and/or a cost sharing subsidy by a full-time employee who was not offered affordable, adequate employer sponsored coverage. The ACA requires notification to employers when an employee enrolls in a qualified health plan via an Exchange (Marketplace) and receives such financial assistance.

    The Department of Health and Human Services (HHS)’s Centers for Medicare and Medicaid Services (CMS) will soon begin to notify employers when an employee has enrolled in a Federal Exchange coverage and received financial assistance. In 2016, employers will receive a notice if an employee received an advance premium tax credit for at least one month in 2016 and if the Federal Exchange has a complete address for the employer. A copy of the sample subsidy notice is available here.

    If the employee identified on the notice incorrectly stated that he or she was not enrolled in employer sponsored coverage or was not offered adequate or affordable employer sponsored coverage, the employer may appeal. The IRS will independently determine any liability for the Employer Mandate penalty, but a successful employer appeal may prevent an incorrect report by the Exchange concerning an employee’s eligibility for coverage. Employers have 90 days from the date of the notice to request an appeal. More details about the employer appeal process and a download of the employer appeal request form is available here.

    Employers in states with State Exchanges should note that each state may have a different notification and/or appeal process. A State Exchange may have its own appeals process or it may follow the federal appeals process established by HHS. California, Maryland, Colorado, Massachusetts, District of Columbia, New York, Kentucky, and Vermont have announced that they will utilize the federal appeals process. Employers in other states with State Exchanges should follow the appeal instructions provided by that state.

    • Federal Government Launches Employer Verification Study

      The federal government’s Centers for Medicare & Medicaid Services (CMS) recently announced that it has contracted with a third party contractor to engage in an employer verification study. The study requests information from employers about the employer-sponsored coverage offered to employees in 2016. This means that some employers may receive a phone call with questions concerning the health plans offered to employees for the 2016 plan year.

      The Patient Protection and Affordable Care Act (ACA) requires the federal agencies to meet certain verification requirements related to administration of the Exchanges (Marketplaces). Verification is intended to ensure that only those individuals who do not otherwise have access to affordable or adequate coverage receive subsidized coverage in the Exchange. While the verification process was delayed for 2014 and 2015, launching of this new CMS study indicates that the agencies have begun verification efforts for 2016.

      The information gathering campaign is slated to occur between April 2016 and June 2016 by telephone outreach to selected employers. Participation in the study is voluntary. Employers who are selected to provide information may be asked questions regarding the lowest-cost self-only health plan that was offered for plan year 2016, as well as their employees' eligibility for employer-sponsored coverage.

      The CMS website states that the study will evaluate whether an employee, or a sample of employees, correctly attested that he or she was not offered employer-sponsored coverage that met the ACA’s affordability and minimum value requirements. An employer-sponsored plan is affordable if the employee’s share of the annual premium for the lowest cost self-only plan that meets the minimum value standard is less than 9.66% of individual’s annual household income in 2016. A health plan meets the minimum value standard if it is designed to pay at least 60% of the total cost of medical services for a standard population, and if its benefits include substantial coverage of inpatient hospital and physician services.

      Additional details about the CMS initiative are available here: https://www.cms.gov/CCIIO/Programs-and-Initiatives/Employer-Initiatives/Employer-Initiatives.html.

      • Correcting IRS Reporting Errors on Forms 1094/1095

        Large employers (50 or more FTEs including full-time equivalents) and employers of any size who sponsor self-insured health plan coverage were required to report to employees and to the Internal Revenue Service (IRS) concerning 2015 health plan coverage offers and enrollment in coverage. Employers and insurers have already provided individual information statements to full-time employees and responsible individuals enrolled in self-insured coverage via IRS Form 1095, which was required to be distributed no later than March 31, 2016. Employers and insurers must also provide copies of the individual Forms 1095 along with IRS Form 1094, which serves as a cover sheet for each IRS submission. Reports to the IRS using Form 1094 are due no later than May 31, 2016 if filed on paper or June 30, 2016 if filing electronically.

        Employers filing electronically must use the IRS’ newly developed Affordable Care Act Information Returns (AIR) Program. Now that employers have begun to submit via the AIR system, the IRS has released information about commonly encountered errors in 1094/1095 submissions, and how to correct them.

        Errors may be identified in a number of ways. Employers may receive error messages from the IRS during the electronic submission process, employers may determine that information previously submitted was incorrect, or the covered individual or employee may report an error to you. Returns that are electronically submitted via the AIR system will generate one of five responses:

        accepted,

        accepted with errors,

        partially accepted,

        rejected, or

        not found.

        Employers using a third party vendor to submit the IRS reports are encouraged to verify that all returns were submitted successfully, and to act promptly to resolve any errors. For example, an employer’s entire submission may be rejected by the AIR system if there is a mismatch between the employer’s legal name on file with the IRS and the name which appears on the IRS Form 1094, or if there is an error in the Employer Identification Number (EIN). An employer’s return may be accepted with errors for a variety of reasons. One common source of acceptance with errors is submission of an incorrect name or Taxpayer Identification number (TIN) on an individual’s Form 1095. In this case, the employer’s submission may be accepted, but with errors.

        The IRS has produced a video (with transcript) to help employers better understand the reporting requirements, how to identify and correct errors, and when to file corrections. The video is available here.

        For more information about this and other regulatory developments, visit our website at www.HCReducation.com.

        Employers that availed themselves of the ACA Reporting services offered by American Fidelity Administrative Services (AFAS) can call their designated AFAS Consultant for assistance.

        • IRS Confirms 2017 Limits Applicable to HSA-Qualified HDHPs

          The IRS recently released new regulatory guidance relevant to employers looking ahead to medical plan renewals for the 2017 plan year. Many employers with January 1st medical plan years are already assessing whether to make changes to contributions, deductibles and out of pocket maximums for the 2017 plan year. Employers planning for an upcoming renewal will want to be aware of the newly announced limits applicable to Health Savings Accounts (HSAs) and qualifying High Deductible Health Plans (HDHPs) set by Rev. Proc. 2016-28:

          Annual HSA Contribution Limits for 2017:

          • Self-Only HDHP Coverage: The 2017 annual contribution limit for individuals with self-only HDHP coverage will be $3,400 (an increase of $50 from the $3,350 limit in 2016).
          • Family HDHP Coverage: The 2017 annual contribution limit for individuals with family HDHP coverage will be $6,750 (unchanged from 2016).
          • Catch-Up Contributions: The 2017 HSA catch-up contribution will be $1,000 for an accountholder age 55 or older (unchanged from 2016).

          HDHP Minimum Required Deductibles:

          • Self-Only HDHP Coverage: The 2017 minimum annual deductible for self-only HDHP coverage will be $1,300 (unchanged from 2016).
          • Family HDHP Coverage: The 2017 minimum annual deductible for family HDHP coverage will be $2,600 (unchanged from 2016).

          HDHP Out-of-Pocket Maximums:

          • Self-Only HDHP Coverage: The 2017 maximum limit on out-of-pocket expenses for self-only HDHP coverage will be $6,550 (unchanged from 2016).
          • Family HDHP Coverage: The 2017 maximum limit on out-of-pocket expenses for family HDHP coverage will be $13,100 (unchanged from 2016).

          Need assistance planning ahead for 2017 and beyond? Contact your American Fidelity representative or email HCR@americanfidelity.com.

        • DOL Addresses School Districts in New Affordable Care Act Implementation

          On April 20, 2016, the Department of Labor (DOL) issued a series of new answers to Frequently Asked Questions (FAQs) regarding implementation of the Patient Protection and Affordable Care Act (ACA).

          Of special interest to public sector education employers is the Question 3 of the FAQs, which addresses termination of coverage when a school teacher resigns after the end of the school year. In this example, a school teacher tendered a resignation on July 31st, after completing a 10 month teaching contract from August 1st to May 31st. Health coverage through the school district health plan was for the plan year from August 1st to July 31st, and the full premium was paid during that period. The teacher did not request that coverage be retroactively terminated, or commit fraud or make an intentional misrepresentation of a material fact. After the teacher resigned on July 31st, indicating intent not to return to the school district for the following school year, the district’s plan terminated coverage retroactively to May 31st.

          DOL emphatically stated that this retroactive termination of coverage was not allowed, stating that “[t]he plan's termination of health coverage retroactive to May 31st is a rescission that is prohibited under the applicable ACA provision and the implementing regulations, because (i) it is a cancellation or discontinuance of coverage that has retroactive effect, (ii) it is not attributable to a failure to timely pay premiums toward coverage, (iii) there was no fraud or intentional misrepresentation of material fact, and (iv) the other limited circumstance exceptions specified in the implementing regulations do not apply. The plan may terminate coverage prospectively, subject to other applicable Federal and State laws or collective bargaining agreements.”

          It is important that school districts carefully evaluate and handle decisions about discontinuation of coverage for terminated employees, especially at the end of the school year when high turnover may occur. In addition to ACA rules, school districts must consider contractual language in employment contracts and in collective bargaining agreements, and must be aware of medical plan’s provisions governing eligibility and terminations of coverage. The DOL FAQs are available at https://www.dol.gov/ebsa/faqs/faq-aca31.html.

          In addition, the FAQs also address actions non-grandfathered plans must take to ensure coverage of preventive services and FDA-approved contraceptives, coverage of out-of-network emergency services, coverage for individuals participating in approved clinical trials, coverage of medication assisted treatment for opioid use disorder, and coverage of breast reconstruction under the Women's Health and Cancer Rights Act. The FAQs clarify certain limitations on cost-sharing and compliance with the Mental Health Parity and Addiction Equity Act of 2008. These portions of the FAQs are most relevant to insurers of fully insured medical coverage and plan administrators of self-insured medical plans who must follow this guidance when providing medical coverage.

        • 7 Questions Employees May Have Regarding Form 1095!

          As many employees begin receiving the IRS 1095 Form for the first time this year, we know there will be many questions that follow! Below is a handy Q&A to help explain what the form is and why it's needed. We welcome you to copy and paste the text below as a starter for your personalized employee communication.

          SEVEN Things to Know About the IRS 1095 Form

          1. What is the Form 1095*?

          Form 1095 is a Patient Protection and Affordable Care Act (ACA) information reporting form, required by the Internal Revenue Service (IRS) for tax year 2015 and beyond.

          2. Who provides the form?

          Employees may receive these from an employer or insurance carrier, and sometimes may receive more than one.

          3. What do I do with the form?

          Employees should keep all forms with their other 2015 tax documents. 1095 Forms are not included with income tax return filings; instead, employees should simply keep them along with their other tax records as back up documentation, if requested in the future.

          4. When will I get the form?

          Forms must be mailed and postmarked by March 31, 2016, so allow a few extra mail days for arrival.

          5. Do I put any of this information on my 2015 income tax return?

          On their individual tax returns, employees must indicate whether or not they had medical coverage during 2015.

          6. Does this mean I have to wait to file a return until I receive a form?

          No - There is no requirement to wait. When completing their returns, employees may rely on information they have already received from their employer or insurer outlining whether they were enrolled in employer-sponsored coverage during the 2015 year. However, we understand some tax preparers are requiring the ACA forms before feeling comfortable finalizing an individual's income tax return.

          7. How can I learn more about this requirement?

          Visit the IRS helpful Q&A site for individual taxpayers: https://www.irs.gov/Affordable-Care-Act/Questions-and-Answers-about-Health- Care-Information-Forms-for-Individuals.

          *1095-C (sent by large employers of 50 or more full-time employees including full-time equivalents) or 1095-B (sent by small employers sponsoring self-funded coverage and insurer for fully-insured coverage.)

        • IRS Addresses Impact of Employer Flex Contributions and Opt-Out Payment on Affordability; Transition Relief Announced

          Employers offering flex contributions under an arrangement that include the choice to receive contributions as taxable cash or to use contributions to pay for non-health benefits, as well as employers that offer opt-out payment to employees who decline major medical coverage will want to pay close attention to newly released IRS guidance. IRS Notice 2015-87, released December 17, 2015, disallows application of these types of payment arrangements towards an employee’s “required contribution” for purposes of assessing the affordability of employer sponsored coverage. Unless contributions meet specified guidelines, the employer may not receive credit when the IRS calculates affordability, which could impact an employer’s potential penalties under the ACA’s Employer Mandate. The Notice does include transition relief which will delay enforcement of the new rules for most plan years beginning prior to January 1, 2017. Employers are advised to review Notice 2015-87 to confirm their eligibility for transition relief, and to consult with tax or legal counsel as necessary.

          Treatment of Employer Flex Contributions:

          Under the new guidance, any of the following circumstances mean that the employer will not receive credit for the flex contribution when calculating affordability:

          • The employee can choose to receive cash instead of purchasing benefits OR 
          • The employee is not permitted to apply the contribution toward the cost of ACA qualifying employer sponsored coverage (“minimum essential coverage”) OR 
          • The employee can use the contribution to pay for non-health care benefits such as dependent care or life insurance

          For plan years beginning before January 1, 2017, if the amount of the flex contribution is available to the employee to pay for health coverage, it will count toward reducing the employee’s required contribution as long as the employer qualifies for the transition relief. To qualify, the contribution arrangement has to have already been in place prior to the release of the Notice—relief is not available to a flex contribution arrangement offering non-health benefits that is adopted after December 16, 2015. Employers wishing to utilize transition relief should take care not to substantially increase the amount of the flex credit offered to employees, as a substantial increase to the amount of the flex contributions that occurs after December 16, 2015 will make the employer ineligible for the relief.

          Treatment of Opt-Out Payment:

          The following types of opt-out payment must be added to the premium paid by the employee when calculating the employee’s required contribution:

          • The amount cannot be used to pay for coverage under the employer’s plan AND 
          • The amount is available only if the employee declines coverage

          Until future guidance is released, and at minimum for plan year beginning before January 1, 2017, employers are not required to increase the amount of an employee’s required contribution by the amount of an opt-out payment, and an opt-out payment will not be treated as increasing an employee’s required contribution for purposes of penalties under the Employer Mandate. The opt-out arrangement must have been adopted by December 16, 2015. Opt-out arrangements adopted after December 16, 2015 are not eligible for the transition relief.

          A more detailed explanation of the recent Notice is available here.

        • IRS Issues Delay in Requirements to Furnish Forms 1094 and 1095 under ACA.

          On December 28, 2015, the IRS announced an extension of the due dates for 2015 Patient Protection and Affordable Care Act (ACA) information reporting by employers, insurers, and other reporting entities. The transition relief provided applies to the furnishing of Forms 1094-C and 1095-C to individuals, as well as filing applicable forms to the IRS, as required under Internal Revenue Code sections 6055 and 6056.

          The announcement provides for an automatic 60 day extension for employers to provide Forms 1095-B and 1095-C that must be distributed to employees from February 1, 2016 to March 31, 2016. The notice also automatically extends the due date for the submission of Forms 1094-B and 1094-C from March 31, 2016 to June 30, 2016 if filing electronically (the extension if not filing electronically is extended from February 28, 2016 to May 31, 2016).

          The notice also explains that some employees who enrolled in coverage through the Federal or State Marketplace (the Public Exchange) could be affected by the extension if they do not receive their Forms 1095-C before they file their income tax returns. However, the individuals who rely upon other information received from employers about their offers of coverage for purposes of determining eligibility for the premium tax credit when filing their income tax returns need not amend their returns once they receive their Forms 1095-C or any corrected Forms 1095-C from the employer. To learn more click here.

        • 2-Year Delay of Cadillac Tax

          Congress has passed a year end budget deal that will affect three tax provisions of the Patient Protection and Affordable Care Act (ACA). The Excise Tax on High Cost Plans (Cadillac Tax) will be delayed by two years until 2020. The Cadillac Tax is a 40% tax imposed on the cost of employer-sponsored health coverage exceeding certain limits: originally for 2018, generally $10,200 for self-only coverage and $27,500 for family coverage. Many reports show that the majority of employer sponsored health plans would be affected by the tax within the first 5 years, and employers have expressed concern over the effect the tax would have on the cost of health benefits. The legislation also makes the tax deductible for employers, further reducing the cost burden of the tax.

          The medical device tax, which has already gone into effect, will also be suspended for two years in 2016 and 2017, and the health insurance providers fee imposed on insurers will be lifted for one year in 2017.

          For additional information on the “Cadillac Tax” click here.

        • Employer Notice Program

          The Department of Health and Human Services recently released an update with FAQs regarding Federally Facilitated Marketplace's (FFM) 2016 Employer Notice Program. This program will require each FFM to notify any employer whose employee was deemed eligible for an advance premium tax credit (APTC) or cost sharing reduction because the employee attested that he or she was not eligible for employer sponsored coverage that is affordable and meets the minimum value standard.

          Beginning in 2016, the FFM will notify employers whose employees enrolled in Public Exchange (Marketplace) coverage who qualify for APTC but the FFM will not notify employers when the employee terminates Marketplace coverage. Notices will be sent to employers if an employee received APTC for at least one month in 2016 and the FFM has an address for the employer. The first batch of notices will be sent in spring of 2016 with additional batches of notices throughout the remainder of 2016. The employer may file an appeal within 90 days of the notice and assert that it provides the employee access to affordable coverage that meets the minimum value standard or that the employee has enrolled in employer sponsored coverage. States that manage their own Marketplaces have flexibility to phase in the employer notices process and will continue to have the option to refer employer appeals to the HHS appeals entity.

          In 2015, the FFM has focused on the education of the public about the employer notice program to ensure effective implementation of the program in 2016. Employers will still be liable for the Employer Mandate penalty for 2015 if an employee received a premium tax credit for coverage received through the Marketplace for 2015 without regard to whether the Marketplace issued a notice to the employer.

        • 2015 ACA Forms

          The Internal Revenue Service (IRS) has released final 2015 Patient Protection and Affordable Care Act (ACA) Forms 1094-C and 1095-C. The 1094-C and 1095-C forms are mandatory filings by employers with 50 or more full-time equivalent employees to enforce section 4980H of the Internal Revenue Code (IRC) Employer Mandate. Employers are required to report 2015 tax year information to both employees and the IRS. The 1095-C form is due to employees by February 1, 2016, and the 1094-C e-filing is due to the IRS by March 31, 2016 (February 29, 2016 for paper filing). Failure to comply with the reporting requirements could result in a fine of $250 for each return for which such failure occurs (up to $3,000,000).

          The final forms are generally consistent with the drafts released earlier this year. However, there are some modifications to the instructions in completing the forms to reflect various scenarios.

        • ACA Reporting Penalties to Increase

          Congress recently passed the Trade Preferences Extension Act of 2015. The Act significantly increases penalties for reporting failures under several sections of the Internal Revenue Code, including the Patient Protection and Affordable Care Act (ACA) reporting using Internal Revenue Service Forms 1094 and 1095.

          As employers are well aware, the ACA requires all large employers to report detailed information concerning their workforce and group health plan coverage offerings. These reports are due in early 2016, and cover the 2015 calendar year. Penalties may be imposed for incomplete, incorrect or failed reporting.

          Penalties for ACA reporting failures (such as failing to file by the deadline, failing to provide required information, or failing to provide correct information) will increase from $100 to $250 per return. The yearly cap on total penalties will also increase, from $1.5 million to $3 million. "Intentional disregard" of the filing requirement may result in a penalty of $500 per return, and the cap on total penalties will not apply.

        • Important Patient Protection and Affordable Care Act (ACA) Update

          On June 25, 2015, the Supreme Court decided King v. Burwell in a 6-3 decision. This ruling upheld financial assistance to individuals who obtain coverage from a federally facilitated exchange (marketplace), and means that tax credits and subsidies for health insurance coverage will extend to individuals in states without a state-sponsored marketplace.

          This means that the premium tax credit/cost-sharing system already in place for individuals and small businesses operating in states without a state-sponsored marketplace will continue to operate as before, without any change.

          American Fidelity Assurance Company has been monitoring developments in the law from the beginning and will continue to do so. We are decicated to helping you understand and implement ACA requirements as needed.

        • Multiple Agencies Release Guidance on Wellness Programs

          Workplace wellness programs must comply with a complex set of rules including the Patient Protection and Affordable Care Act (ACA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). On April 16, 2015, the Equal Employment Opportunity Commission (EEOC) released proposed regulations addressing application of the ADA to workplace wellness programs. Additionally, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (the Departments) released three sets of FAQs regarding wellness programs, HIPAA privacy/security, and the ACA's market reforms, as well as a research report on workplace wellness programs.

          The proposed EEOC guidance makes it clear that the ADA is applicable to employer-sponsored wellness programs if the program includes disability-related inquiries or medical examinations. One example would be requiring employees to complete a health risk assessment or biometric test in order to earn a wellness incentive. Under the proposed EEOC rules, wellness programs must be voluntary. It is not permissible to require employees to participate or to take any adverse action for failure to participate. Wellness programs must also be reasonably designed to promote health or prevent disease, and incentives for participation in the wellness program may not exceed 30 percent of the total cost of employee-only coverage. The proposed regulations clarify that the 30 percent maximum applies to both health contingent wellness programs and participatory wellness programs that include disability-related inquiries or medical examinations.

          The Departments of HHS, Labor, and Treasury FAQs reinforce previously released wellness program guidance. Additionally, the HHS Office for Civil Rights (OCR) issued guidance on HIPAA privacy and security rules applicable to workplace wellness programs.

          All of these regulations suggest that wellness programs should be designed carefully and with these new regulations in mind.

        • HHS Notice Addresses Out-of-Pocket Limits and Minimum Value Requirements

          The U.S. Department of Health and Human Services (HHS) and the centers for Medicare & Medicaid Services (CMS) recently released a notice addressing, among other topics, annual limitations on cost sharing for self-only coverage and clarifying the application of the minimum value standard to employer-sponsored health plans.

          Annual Out-of-Pocket Limits

          For 2016, out-of-pocket costs are limited to $13,700 for a family and $6,850 for self-only coverage. The notice specifies that the annual limitation on cost sharing for self-only health coverage applies to all individuals regardless of whether the individual is covered by a self-only health plan or is covered by a health plan that is other than self-only. High deductible health plans may continue to offer plans that count the family's cost sharing to the deductible limit. However, a high deductible health plan may not require an individual in the family plan to exceed the annual limitation on cost sharing for self-only coverage, effectively embedding the individual out-of-pocket limit within all family high deductible health plans. Furthermore, any annual limit on cost sharing must apply for an entire year regardless of whether a health plan is a calendar year plan or not. The notice also states that plans are not required to count out-of-network charges toward cost-sharing limits.

          Coverage of Hospital and Physician Services Required to Meet
          Minimum Value


          Under the Patient Protection and Affordable Care Act (ACA), an employer's share of the total allowed costs of benefits provided under the health plan must equal or exceed 60% to satisfy the ACA's minimum value requirement. The new notice clarifies that, in order to meet minimum value standards, a health plan must provide a benefit package that includes substantial coverage of both inpatient hospital services and physician services. If an employer offers health coverage that fails to meet the minimum value requirement, and any employee goes to the marketplace and qualifies for the financial assistance, that employer could be subject to a $3,000 penalty under Internal Revenue Code section 4980H(b).

          This is true even if the health plan "passes" under the minimum value calculator available on the HHS website, which is one of several options for calculating minimum value. Employers who have already enrolled employees in plans that do not cover hospital care, or who signed contracts to provide such plans by November 4, 2014, will not face a penalty for plan years beginning on or before March 1, 2015. Such employers are advised to re-evaluate their plan offerings because they will be subject to a penalty for future plan years.

        • IRS Releases Fact Sheet on Employer Mandate Procedures

          The IRS recently released a new fact sheet explaining the process the agency plans to use to administer the employer mandate under the Patient Protection and Affordable Care Act (ACA).

          Beginning January 1, 2015, the ACA imposes two potential penalties-(1) a penalty imposed on employers that choose not to offer healthcare coverage to substantially all of their full-time employees, and (2) a penalty imposed on employers that offer coverage, but the coverage offered is not adequate or affordable under the law. Both penalties are triggered when any one full-time employee obtains health insurance through the Public Exchange Marketplace (Marketplace) and receives a premium tax credit.

          The new IRS fact sheet details these two types of penalties and how they will be calculated. It sets forth how the penalties will be imposed month-by-month, and gives examples of how the penalties might be assessed in various scenarios.

          The fact sheet also explains that employers will not self-report or calculate these employer shared responsibility payments. Rather, the IRS will calculate the potential penalty due and contact the employer. The IRS' determination will occur after employees have filed their individual tax returns for the year claiming any premium tax credits. After the IRS sends the calculation to the employer, the employer will have an opportunity to respond to the IRS before any assessment or notice/demand for payment will be made. The IRS will adopt procedures to ensure that employers are notified when an employee receives the premium tax credit for purchasing coverage through the Marketplace.

          Employers should begin to think about the ACA and to prepare now, before an assessment or collection notice arrives from the IRS. Applicable transition relief, ACA safe harbors, and careful workforce planning can minimize or prevent employer mandate penalties. Thorough documentation will be an employer's best defense against an IRS claim that an employer mandate penalty is due.

        • Frequently Asked Questions about Cafeteria Plan Flex Credits and the ACA

          On November 26, 2014, the Internal Revenue Service (IRS) and Treasury Department published final regulations addresing how different types of employer payment arrangements are factored into affordability calculations under the Individual Mandate.

          A number of customers have contacted us to ask about this recent guidance and how it might affect their benefit offerings. In particular, some customers are concerned about the situation in which an employer offers a section 125 cafeteria plan with the option of taking so-called "cashable" flex credits as a taxable benefit. Such credits can either be cashed out after-tax, or used to select from a menu of pre-tax benefit offerings. Below are a few key questions customers have asked, along with American Fidelity Administrative Services (AFAS's) responses.

          As always, AFAS reminds its customers that we do not provide tax or legal advice. Employers are urged to work with their own legal counsel to determine how the IRS regulations migh apply to their specific facts and circumstances.

          1. What is the Individual Mandate?
          The Individual Mandate (or individual shared responsibility provision) went into effect January 1, 2014 and requires individual taxpayers to maintain minimum essential coverage for themselves and their dependents, or potentially pay a penalty when they file their annual tax returns.

          2. How Do Individuals Who Cannot Afford Coverage Qualify for an Exemption from the Individual Mandate?
          Certain individuals may qualify for an exemption from the individual shared responsibility penalties. If an exemption applies, then even if that individual fails to obtain minimum essential coverage he or she will not owe an Individual Mandate penalty.

          One such exemption is available if the individual declines employer-sponsored coverage that is considered unaffordable. The final IRS regulations published on November 26, 2014 explain how to qualify for this type of exemption. The exemption is available to an individual employee who fails to obtain minimum essential coverage when the plan offered to that employee is not affordable because the individual's required contribution to the employer's lowest cost self-only coverage exceeds 8 percent of his or her total household income.

          The final regulations include provisions designed to help an employee calculate whether his or her available employer coverage is considered affordable or unaffordable for purposes of claiming this exemption.

          3. For Purposes Of The Individual Mandate, How Do Employer Flex Credits Count Toward An Employee's Required Contribution To The Cost Of Coverage?
          The final regulations state that, for purposes of determining the affordability of coverage, the employee's required contribution is reduced by any contributions made by an employer under a section 125 cafeteria plan that (1) may not be taken as a taxable cash benefit, (2) may be used to pay for minimum essential coverage, and (3) may be used only to pay for medical care within the meaning of Internal Revenue Code section 213.

          The effect of this guidance is that cashable credits that can be taken by the employee as additional taxable compensation, or that can be used to pay for something other than medical care, will be treated as a contribution of the employee rather than the employer for the purpose of determining affordability under the Individual Mandate.

          4. Will Employer Plans Offering Flex Credits Be Considered "Affordable" Under The Employer Mandate?
          Because employers usually do not know an employee's household income, the ACA provides three affordability safe harbors for employers, based on the employee's 1) box 1 Form W-2 wages; 2) rate of pay, or 3) the federal poverty line. Employers will not pay an unaffordability penalty if the coverage they offer to employees is affordable under one of the three safe harbors.

          The November 26, 2014 regulations address the Individual Mandate only, and are silent on the issue of whether similar rules will apply to determining employer affordability safe harbors under Section 4980H. There has been speculation that the IRS could apply similar flex credit guidance to the Employer Mandate affordability rules via future rulemaking. However, as the rules stand today, the language about the flex credits from the November 26, 2014 guidance does not seem to be directly applicable to the determination of affordability safe harbors under the Employer Mandate.

          AFAS will continue to monitor regulatory developments in this area and update its customer accordingly.

        • IRS Releases Final Forms and Instructions for Employer Reporting Under the Affordable Care Act

          The Internal Revenue Service (IRS) has released final versions of the forms that will be used to meet the Patient Protection and Affordable Care Act's (ACA) information reporting requirements under Internal Revenue Code sections 6055 and 6056. Sections 6055 and 6056 require insurers, including employers that sponsor self-insured plans, and large employers to file information returns with the IRS and also provide statements to employees. Reporting is mandatory for the 2015 calendar year regardless of an employer's plan year effective date in 2015. Information for 2015, including the actual months of coverage and dependent social security numbers, is required to be reported in early 2016.

          Insurers and employers that sponsor self-insured health plans will use IRS Forms 1094-B and 1095-B to report under section 6055 on individuals enrolled in minimum essential coverage. Large employers (as defined by the ACA, those employing 50 or more full-time equivalents) will use IRS Forms 1094-C and 1095-C to report under section 6056 on offers of health coverage and enrollment in employer-provided plans. Employers that sponsor self-insured plans and that are also applicable large employers will use IRS Forms 1094-C and 1095-C to file a combined report under both section 6055 and section 6056.

        • "Culturally and Linguistically Appropriate" County List Updated

          On December 16, 2014, the Department of Health and Human Services released the updated “Culturally and Linguistically Appropriate Services (CLAS)” county data list, which is used to comply with certain disclosure requirements under the Public Health Service Act (PHSA, as added by PPACA). Non-grandfathered group health plans and health insurance issuers offering non-grandfathered health insurance coverage are required to provide certain notices in a “culturally and linguistically appropriate” manner, if at least 10% of a county’s population is literate only in the same non-English language, as defined under Section 2719 of the PHSA.

          Notices related to internal claims and appeals, external review processes, and the Summary of Benefits and Coverage (SBC) are required to be in compliance. In these instances, the employer must provide the notices upon request in the non-English language, and include in all English versions of the notices a statement in the non-English language clearly indicating how to access non-English language services from the plan or insurance issuer.

          The CLAS county data list is updated annually and includes all counties which meet or exceed the 10% threshold. The 2014 edition included a note stating that the only change from the prior list is the addition of Sullivan County in Missouri, which now meets the 10% threshold of Spanish speaking households. This is the first county in Missouri to be added to the CLAS county data list.

        • Stop Loss Insurance Regulations Issued

          On November 6, 2014, the U.S. Department of Labor (DOL) issued guidance on state regulation of stop-loss insurance for self-insured group health plans.

          The guidance provides that unless prohibited by state insurance law, a stop-loss insurer could offer insurance policies with attachment points set so low that the insurer assumes nearly all of the employer's claim's risk.

          Some states have considered measures to prohibit insurers from issuing stop-loss contracts with attachment points below a specified level, but have been unsure that they may regulate stop-loss coverage due to ERISA preemption of state regulation of private sector employee benefit plans.

          The guidance clarifies the role of states to regulate stop-loss insurance for employee benefit plans while maintaining an employer’s flexibility in stop loss design based on what is allowable in its state of residence.

          This effectively provides the employer with the advantage of not being required to meet state insurance laws with a self-funded major medical plan and the ability to shift the risk of the self-funded plan through stop-loss insurance.

        Caution:

        The information provided here is only a brief summary that reflects our current understanding of select provisions of the law, often in the absence of regulations. All interpretations are subject to change as the appropriate agencies publish additional guidance. American Fidelity does not provide legal advice – as such, we suggest that employers and individuals consult with their legal counsel and/or tax advisors about how the ACA may impact them.

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