Employers that sponsor self-insured group health plans, including health reimbursement arrangements (HRAs) should keep in mind the upcoming July 31, 2015 deadline for paying fees that fund the Patient-Centered Outcomes Research Institute (“PCORI”). As background, PCORI was established as part of health care reform to conduct research to evaluate the effectiveness of medical treatments, procedures and strategies that treat, manage, diagnose or prevent illness or injury. PCORI fees were first due by sponsors of self-insured group health plans and insurers last July for plan and policy years that ended on or after October 1, 2012. Under health care reform, most employer sponsors and insurers will be required to pay PCORI fees until 2019.
The amount of PCORI fees due by employer sponsors and insurers is based upon the number of covered lives under each “applicable self-insured health plan” and “specified health insurance policy” (as defined by regulations) and the applicable plan or policy year.
For plan years that ended between January 1, 2014 and September 30, 2014, the fee is $2.00 per covered life and is due by July 31, 2015.
For plan years that ended between October 1, 2014 and December 31, 2014, the fee is $2.08 per covered life and is due by July 31, 2015.
The fee will be paid by July 31, 2016 for any plan years ending in 2015.
NOTE: The insurance carrier is responsible for paying the PCORI fee on behalf of a fully insured plan. The employer is responsible for paying the fee on behalf of a self-insured plan, including an HRA.
Historical information for prior years:
For plan years that ended between October 1, 2012 and December 31, 2012, the fee was $1 per covered life and was due by July 31, 2013.
For plan years that ended between January 1, 2013 and September 30, 2013, the fee was $1 per covered life and was due by July 31, 2014.
For plan years that ended between October 1, 2013 and December 31, 2013, the fee was $2 per covered life and was due by July 31, 2014.
The fee-amount per covered life generally increases each year based upon health expenditure data released by the Department of Health and Human Services annually. Employers that sponsor self-insured group health plans should report and pay PCORI fees using IRS Form 720, Quarterly Federal Excise Tax Return.
Final regulations issued by the Internal Revenue Service contain special rules regarding the types of plans and policies for which fees are due and also include several different methods that may be used by employers to determine the number of covered lives under each plan. There are additional rules for counting the number of covered lives under an HRA (in general, the fee applies on a per-covered employee basis for HRAs). Employers that sponsor self-insured plans should review these rules closely to ensure that the correct PCORI fees are paid.
Note that because the PCORI fee is assessed on the plan sponsor of a self-insured plan, it should not be included in the premium equivalent rate that is developed for self-insured plans if the plan includes employee contributions. However, an employer’s payment of PCORI fees should be tax deductible as an ordinary and necessary business expense.
This alert was prepared for Benico, Ltd. by Peter Marathas, an ERISA and Executive Compensation lawyer with over 20 years’ experience assisting clients nationally with benefits and compensation matters. He is a partner at Marathas Barrow & Weatherhead LLP, a premier employee benefits, executive compensation and employment law firm. He can be reached at firstname.lastname@example.org or (617) 830-5456.
The information provided in this alert is not, is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does it necessarily reflect the opinions of the agency, our lawyers or our clients. This is not legal advice. No client-lawyer relationship between you and out lawyers is or may be created by your use of this information. Rather, the content is intended as a general overview of the subject matter covered. This agency and Marathas Barrow & Weatherhead LLP are not obligated to provide updates on the information presented herin. Those reading this alert are encouraged to seek direct counsel on legal questions.
Thursday, June 24, at 2 PM ET / 1 PM CT, John Garven, President of Benico Ltd., and Bobbi Kloss, Director of Human Resources Management Services for the Benefit Advisors Network, will be conducting a webinar addressing this topic.
Ask yourself these questions…
Is my company / organization an “Applicable Large Employer” (ALE) subject to the Affordable Care Act’s Employer Shared Responsibility provision? If “yes”, then…
Do we employ variable hour or temporary employees? If yes, then…
Have we conducted a look-back analysis to determine which variable hour employees must be offered benefits, and have we established measurement, stability and administrative periods for tracking them?
Are we prepared to deal with the reporting requirements during 1Q2016 under Sections 6055 and 6056 of the Internal Revenue Code?
If you do not yet have a process in place for managing this aspect of compliance, then please register. Even if you feel that you are in pretty good shape with your compliance efforts, still consider registering if for no reason other than to reinforce your understanding of the law’s requirements.
The series is designed to help business owners understand key pieces of the law, including the small business health care tax credit, employer shared responsibility (“pay or play”), updates regarding the small business health insurance marketplace (SHOP), and resources available for small businesses interested in learning more about the law. The same webinar is offered each time.
The webinars will take place on the following dates:
In February 2015, the IRS released final forms and instructions related to information reporting under the Affordable Care Act (the “ACA”). These forms include Form 1095-B, Health Coverage, Form 1094-B, Transmittal of Health Coverage Information Returns, Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, and Form 1094-C, Transmittal of Employer-Provided Health Insurance Offer and Coverage.
The issuance of the final forms is a critical step in implementing the ACA’s reporting requirements, which enable the government to track compliance with the individual and employer mandates, and to determine eligibility for premium tax credits used to purchase health insurance coverage through a Health Insurance Marketplace (the “Marketplace”). Read more
The Affordable Care Act (ACA) created new reporting requirements under Internal Revenue Code (Code) Sections 6055 and 6056, and the clock is ticking! Under these new reporting rules, certain employers must provide information to the IRS about the health plan coverage they offer (or do not offer) to their employees. The additional reporting is intended to promote transparency with respect to health plan coverage and costs. It will also provide the government with information to administer other ACA mandates, such as the large employer shared responsibility penalty and the individual mandate.
On Tuesday, June 3rd, the IRS issued a revised Form 720 and instructions for filing the PCORI fees by July 31, 2014. Filers will enter covered-lives counts and applicable rates ($1 for plan years ending before Oct. 1, 2013; $2 for plan years ending on or after Oct. 1, 2013) in Part II of Form 720 (line 133) to calculate the amount owed.
Instructions include a table for use by filers with plans or policies subject to both the $1 and $2 applicable rates. Though Form 720 is generally used for quarterly excise taxes, PCORI filers remit that fee annually – by July 31 – and complete only line 133 (unless also submitting excise taxes).
Under the Affordable Care Act, the PCORI fee applies to each plan or policy year that ends after Sept. 30, 2012, and before Oct. 1, 2019.
8,019,763 people selected marketplace plans from October 1, 2013 through April 19, 2014.
Nearly 2.6 million signed up via state-based exchanges, and there were over 5.4 million plan selections via the federally facilitated and partnership marketplaces.
About 3.8 million people were procrastinators and enrolled from March 2-April 19.
Of the more than 8 million:
54% female, 46 % male
63% Caucasian, 17% African-American, 11% Latino, and 8% Asian
34% < 35 years old;
28% are between 18 and 34 years of age;
65% selected a Silver plan;
20% went with a Bronze plan; and
85% were eligible for a premium tax credit
Being a red state or a blue state didn’t really matter. More than a third of the sign-ups came from three states with large numbers of uninsured residents. California had 1.4 million of its citizens sign up, whereas Florida and Texas brought in 980,000 and 730,000 enrollees respectively. The next closest states were New York and North Carolina, which each signed up more than 350,000 residents.
The states that enrolled the smallest % of their uninsured populations were Iowa, South Dakota, and Massachusetts.
I was privileged to be asked to speak at the 43rd Annual Mini-Institute for the Central Illinois Society of Financial Service Professionals on May 1st in Bloomington, Illinois on the subject of “Health Care Reform – Challenges and Opportunities”. Basically the speech provided a retrospective (what’s occurred to date), perspective (what’s currently in play), and prospective (what things may look like in the near and longer terms) around the Patient Protection & Affordable Care Act (PPACA). Since it was geared to financial advisors, the takeaways address the sorts of things that advisors should be speaking with their clients about as it relates to the law and its impact on their lives and businesses.
At the end of 2013 many companies and organizations with less than 50 employees did something called an “early renewal” with their group health insurance plans as a means of kicking the can down the road, many until December 1, 2014, to defer their compliance with Health Care Reform for up to 11 months. The principal reason for doing such in most cases was to avoid a significant rate increase at the end of 2013 with the thought of “Let’s buy some time”.
QUESTION – If your company is one of these companies that bought some time by doing an early renewal, what is your strategy at the end of 2014 for reasonably managing costs of complying then?
Did you know that there are viable group health insurance financing options available in the market to help you avoid the Health Care Reform “cost conundrum” later this year when your company’s / organization’s group plan renews? Self-insurance either with an insurance company or third party administrator (TPA) providing plan administration and purchasing catastrophic insurance coverage called “stop loss insurance” will, no doubt, be a solution for many small employers wrestling with this issue this year.
Self-insured medical plans are exempt from some of the more onerous provisions of Health Care Reform, such as the Health Insurance Tax (HIT) and Modified Community Rating. Avoiding these two aspects of Health Care Reform alone can result in saving tens and even potentially hundreds of thousands of dollars of expense.
Benico, Ltd. provides private companies, public sector employers, and not-for-profit organizations of all sizes with strategic advice around the design, risk management, communication, and enrollment of their health and welfare plans and with compliance around the laws and regulations relating to the same. To discuss your company’s situation, please contact Benico’s principal, John Garven, at 847-669-4800, ext. 202.
The purpose of this blog post is to provider our readers with some perspective about where things currently stand and where they are headed this year with regard to the timing and types of guidance around the Affordable Care Act (“ACA”, aka “ObamaCare”) that we should expect to receive from the federal agencies having jurisdiction (principally HHS, DOL, and the IRS).
First, we believe everyone will agree that February was a VERY BUSY MONTH with regard to ACA guidance. To this point, the final regulations around the employer mandate were released on Monday, February 10th. Following are our thoughts about this development:
1) Generally speaking, we are sure the fact of the delay for compliance with the employer mandate until 2016 for businesses / organizations having less than 100 but more than 50 full-time equivalent employees (FTEs) will at least come as welcome news in the short term.
2) Perhaps even as significant as the 1st point, though, is the transitional relief afforded businesses / organizations having 100 or more FTEs under Section 4980H(a) of the law. Specifically, larger employers next year will NOT be subject the $2,000-per-employee “no coverage” penalty if they, in fact, offer compliant, “qualified” coverage to at least 70% of their full-time employees. This is a change from the proposed rule, under which employers would have had to offer coverage to at least 95% of their full-time employees right away.
3) It should be kept in mind that next year under the 70% standard and, in 2016 and thereafter under the 95% standard for all “applicable large employers” (businesses / organizations with 50 or more FTEs), employers may still be subject to an “affordability” penalty of $3,000 for any otherwise eligible employee who obtains government-subsidized coverage through the public exchange.
4) It should also be kept in mind by businesses / organizations that the “no coverage” and “affordability” penalties are excise taxes, meaning that they’re NOT deductible business expenses for tax purposes.
5) There is some helpful guidance in the final regulations around seasonal employees who may be excluded entirely if they work less than 6 months as well as for educational employees.
Second, we anticipate that the rest of 1Q2014 will prove to be a very important period in terms of guidance and developments, including the final stretch before the end of the Marketplace open enrollment period on March 31st. It was recently reported that there are 56 active items of ACA guidance currently in the works between the IRS, DOL, and HHS. 43 of the 56 items are expected to be released during 2014, and several of them are frankly needed very soon. In addition, the continued Congressional negotiations on the debt ceiling and the federal budget could have ACA implications.
Finally, just a note that our firm offers the following “on-demand” Health Care Reform (HCR) resources:
In closing, our continued challenge is education. Most Americans (62% according to a recent Kaiser Health News poll) do not realize that most significant ACA provisions have taken effect. 2013 was in many ways a year of survival. 2014 will be a year of strategy. To this end, our firm stands ready to engage with our clients to deliver real-world and practicable solutions that fit their strategy around compliance and cost management.
The open enrollment period is expected to end on March 31, 2014. Anyone can sign up for an individual medical plan during this time period. There is speculation that the open enrollment period will be extended because of the problems with the initial roll-out of the exchanges, but for now it is still scheduled to end on March 31, 2014.
Applications and premium payments for coverage, whether purchased on the exchange or off, must be received by the 15th of the month to receive an effective date of the 1st of the following month. For example, an application must be submitted and the initial premium must be paid by January 15th to receive a February 1st effective date. The application submission dates and premium due dates may be different for off-exchange health plans.
After the open enrollment period ends on March 31st, individuals must experience a qualifying event to be eligible to enroll in a medical plan or make a plan change mid-year. Individuals will have 60 days from the date of the qualifying event to sign up for coverage or make a plan change. See the list of qualifying events below.
As long as an individual submits an application by March 31st they will be exempt from the health care law’s individual mandate penalties provided they maintain coverage throughout the rest of the year. This statement holds true even if the individual receives an effective date that would cause them to be without coverage for more than 3 consecutive months. Individuals that are without coverage for 3 or more consecutive months out of the year for other reasons will be subject to the Individual Mandate penalties unless they qualify for an exemption.
The next open enrollment period will occur from Nov. 15, 2014 to Jan. 15, 2015. It was originally scheduled to occur between Oct. 15, 2014 and Dec. 7, 2014, but has since changed. During this time period anyone may sign up for coverage or make a plan change without a qualifying event.
List of Qualifying Events – Special Enrollment Periods for Individual Medical Plans
If an individual experiences a qualifying event he/she will have 60 days from the date of the qualifying event to apply for an individual medical plan or make a change to their existing coverage. The following list outlines the qualifying events that have been identified by the Affordable Care Act (ACA).
Involuntary loss of minimum essential coverage, for example, because of a job loss (voluntarily terminating coverage or policies that are canceled for non-premium payment are not qualifying events);
Change of family structure (i.e. marriage, divorce, death, newborn);
Gaining citizenship or permanent resident status;
Becoming newly eligible for a premium or cost sharing subsidy (generally results from mid-year income changes);
Becoming ineligible for a premium or cost sharing subsidy (generally results from mid-year income changes);
Change of residential address that results in new medical plan options available;
Did not enroll during the open enrollment period because of a mistake, misrepresentation or inaction of an officer, employee or agent of the Health Insurance Marketplace;
The insurance company substantially violated a material provision of its health insurance contract;
The individual is a member of an American Indian Tribe (can enroll or make a plan change one time per month); or
The individual can demonstrate to the Health Insurance Marketplace that he/she has other extenuating circumstances that qualify him/her for special enrollment.
The FAQ provides guidance on a number of issues, including new recommendations made by the U.S. Preventive Services Task Force and how they affect the ACA’s preventive care requirement, limits on participant cost-sharing (i.e., out-of-pocket limits), expatriate health plans, wellness programs, fixed-indemnity insurance, and guidance on the ACA’s impact on the MHPAEA.
The FAQ generally confirms previous Department guidance on the issues addressed and does not significantly change the application of these rules and mandates to employer-sponsored group health plans.
Benefit Advisors Network (BAN) Compliance Director, Peter Marathas, discusses the Affordable Care Act and rising health insurance premiums. BAN Smart Partner, Benico, Ltd., can help companies address the concerns mentioned in this short, informative video.
PPACA (aka “ObamaCare”) requires employers to provide employees with a written notice about the new health insurance marketplaces (exchanges) in which enrollment is set to commence October 1st.
On September 11th the Department of Labor (DOL) issued an “FAQ on Notice of Coverage Options”, clarifying there is no fine or penalty under the law for failing to provide the notice. However, that does not mean that noncompliance is a good option, or that the noncompliant employer may not be subject to other penalties or civil damages. To this point, employees in plans subject to ERISA will likely be granted the right in the future to recover damages sustained as a result of the employer failing to provide information as directed under the law’s notice requirement. ERISA also provides for recovery of legal fees and other related damages. Furthermore, in the future compliance with notice requirements could become a focus of routine DOL audits.
Aside from possible ERISA-related concerns, there are several other reasons why employers may still want to provide the notice. The notice can help employers answer employee questions about:
What the Marketplace is;
Whether the employer will still provide a plan once the Marketplace is operational;
How Marketplace plans are different from the employer’s plan; and
Whether the employer’s plan is intended to be affordable and provide minimum value.
In many cases, employer-sponsored coverage may be a better option for employees than Marketplace coverage. For example, premium contributions for employer-sponsored coverage through payroll will often be less expensive for the employee than the premiums for Marketplace coverage because of the employer’s level of subsidy. Additionally, the employee portion of the premium for employer-sponsored coverage is typically excluded from taxable income and is therefore tax-free. This is not the case at all with Marketplace plans.
Despite the lack of penalty, in the FAQ posting the DOL indicated that employers should provide the marketplace notices to employees and reiterated the content that should be included. The FAQ also provides links to the model notices issued by the DOL earlier in the year.
Please visit the DOL website or contact Benico, Ltd. at 847-669-4800 for more information on the Marketplace Notice requirement.
On September 11th in its online FAQ, the Department of Labor confirmed the fact that currently there will be no penalties for employers surrounding a failure to issue Marketplace Notices (also known as “Notice of Exchange Coverage”) to employees. Some may have interpreted the new FAQ statement as being new guidance. In fact, the absence of penalties under the ACA surrounding the Exchange Notices, is not news, and has been a known under Fair Labor Standards Act (FLSA) §18b.
Employers subject to FLSA are still required to distribute a Marketplace Notice to all current employees by October 1, 2013, and new hires going forward.
As precautionary and to be completely clear: despite the fact that there is no statutory penalty, there could be ERISA fiduciary issues under case law related to the failure to communicate to participants in the absence of the employer communication. In general, employers that sponsor ERISA plans have a duty to be straightforward with participants. Therefore, we recommend that you comply with this requirement and we would not advise that an employer could safely disregard this obligation.
Below are some additional questions and answers surrounding the Exchange Notice requirement. If you have any additional questions on this, or any compliance issue, please contact us at your earliest convenience.
Question: If there is no penalty, if the notice is not sent out, and there is no “proof” of delivery requirement, what would the employer face if they did not send out the Exchange Notice and saved all that cost?
Answer: If the exchange has the employer’s contact information, it may establish a dialogue with an employer whose employee is applying for a subsidy, which at least notifies the employer that its employee may be getting a subsidy. Failure to provide the notice could also potentially be viewed as interfering with an employee’s ability to get a subsidy, which is generally prohibited under ACA.
Question: Regarding the model Notice of Exchanges that is required to be customized by employers, the notice itself does not include any required information in regards to payroll contribution for 2014 – there is a section on the second page that addresses this and it is marked as optional.
However, the data form on employer coverage (link to the Marketplace Application Checklist document is below) does provide a block where information must be provided on the payroll contributions for the plan.
The question is, what if the employer has not set their 2014 payroll contributions by October 1? If this has not been determined, how should an employer answer this item? Is there any employer penalty (or other ramifications) for not establishing the 2014 payroll contribution by October 1?
An employer that is presented with a copy of the Employer Coverage Tool by an employee who is applying for Exchange coverage should complete it to the best of their ability.
The form notes that with respect to the question you reference about premiums (#16), an employer would only complete that section if the plan year is about to end and the employer knows the premium and other information for the upcoming year.
Question: We know the Exchange Notices need to be delivered by 10/1/13 to all current employees, and starting 10/1/13 on an ongoing basis to all new employees, but what is the frequency that this notice needs to be distributed going forward? Must an employer distribute it each year at their company’s renewal, each year prior to a set date or only when there is a change to the notice?
Answer: It is not an annual requirement based on current guidance.
Question: Does the notice need to be distributed only to those employees who work more than 30 hours per week? Or can an employer deliver one notice to those who work more than 30 hours and another notice to those who work less?
Answer: The notice should go to all employees regardless of hours or other status.
Question: Page 2 of the Notice outlines the eligibility requirements for the plan – can the employer provide a different notice to Seasonal, Variable Hour and Regular Employees since there are different eligibility requirements for each class?
Answer: The notice should go to all employees regardless of hours or other status. The notice is designed to be able to be provided to all employees without tailoring it to specific classes; however, it should generally be permissible for an employer to do so.
Question: If an employer is meant to use only one notice for all employees, how does an employer determine whether to check the box for whether the coverage meets the affordability requirements, IF the coverage provided is expected to be affordable for some employees, but not all (which may be the case, especially if the notice must be provided to those working less than 30 hours who are still eligible for benefits, Minimum Value coverage may still be offered to Part Time 20 hour/week employees, but for those employees that coverage may not be affordable)
Answer: An employer should consider the relevant facts and circumstances when deciding whether to check the box regarding affordability.
Question: If an employer’s plan is affordable and adequate, can they write a cover letter when sending out the exchange notice to notify their employees that they wouldn’t qualify for subsidies?
Answer: Yes, that would be fine. Note that the first page of the exchange notice also states that employees who are eligible for affordable, minimum value employer coverage will not be eligible for a subsidy.