Federal Judge Derails New Association Health Plans

judgeAs reported by The Phia Group on March 29, 2019, a federal judge in Washington, D.C. ruled that the new Department of Labor rules expanding the marketing of Association Health Plans (AHPs) violate existing law. TPAs, brokers and employers see this as a significant blow to AHPs, especially new self-funded AHPs that have been preparing to launch on April 1, 2019.

Federal Judge John Bates sided with several states that took issue with the DOL’s final rules several months ago, arguing that a broad availability of AHPs is not within the scope of ERISA, which defines an employer as having at least two or more employees. The final rules were going to allow small employers, including working business owners (employers of one), to join with others based on either common geography or industry affiliation to form an AHP. It appears that the Judge’s ruling means that both criteria, geography and industry affiliation, must be met and that qualifying employers must have a minimum of two employees.

Thus far, we are not aware of any response filed by the DOL. We will continue to monitor reactions to the ruling and other developments regarding Association Health Plans.

President Signs Right to Try Law

supreme-courtWith the recent passing of the Right to Try Act, which gives terminally ill patients access to experimental treatments that have not yet been approved by the FDA, it may be important to understand if and how this impacts the benefits you currently offer your employees. The first thing to know is that Right to Try does not mandate or require insurance coverage of experimental drugs, nor of their potential side effects. Another thing you may not know is that while experimental drugs were previously available under Right to Try legislation in 38 states, only one patient has taken advantage of the benefit.

According to the Self Insurance Institute of America, it is important for those with self-funded plans to review how the plan document treats access and payment of experimental drugs. It is also important to determine how your plan currently covers experimental drug treatments and side effects under the FDA Expanded Access program. Finally, we recommend having a conversation with your TPA to identify not only any potential compliance issues that may exist within your current plan, but how your company would like to treat Right to Try related expenses going forward.

self-funding-video

ACA Mandate Penalty Eliminated

The ACA has required people to have what the government has classified as minimum essential coverage, or else pay a penalty which now amounts to 2.5% of modified adjusted gross income over the income tax filing threshold.

While the House version of tax reform did not change the penalty in any way, the Senate version cut the penalty to 0% and in joint conference debates, the reduction was kept in the bill that was just passed by both houses. The Senate provision is not a repeal of the penalty, but instead a reduction, which could be increased by Congress in the future. While lower corporate and personal tax rates will take effect this year, this reduction will not become effective until 2019.

self-funding-video

Deadlines Extended for Furnishing Forms 1095-B and 1095-C in Early 2017

hr-news-alertThe IRS has extended the due dates for furnishing 2016 Forms 1095-B and 1095-C to covered individuals and full-time employees, respectively, from January 31, 2017, to March 2, 2017. In addition, the IRS is also extending good faith penalty relief to reporting entities who can show they made good faith efforts to comply with the calendar year 2016 information reporting requirements.

Who is Required to Report

Applicable large employers (generally those with 50 or more full-time employees, including full-time equivalents or FTEs) must use Forms 1094-C and 1095-C to report information to the IRS and to their full-time employees about their compliance with the employer shared responsibility provisions (“pay or play”) and the health care coverage they have offered in a calendar year. Alternatively, Forms 1094-B and 1095-B are used by insurers, self-insuring employers, and other parties that provide minimum essential health coverage (regardless of size, except for large self-insuring employers) to report information on this coverage to the IRS and to covered individuals. Employers subject to both reporting provisions (generally self-insured employers with 50 or more full-time employees, including FTEs) will satisfy their reporting obligations using Forms 1094-C and 1095-C.

Note: Reporting entities are required to report in early 2017 for coverage offered (or not offered) in calendar year 2016.

Furnishing Deadline Extension

The IRS has extended the due dates for furnishing 2016 Forms 1095-B and 1095-C to covered individuals and full-time employees, respectively, from January 31, 2017, to March 2, 2017. However, the deadline to file 2016 Forms 1094-B, 1095-B, 1094-C, and 1095-C with the IRS was not extended, and remains February 28, 2017 (or March 31, 2017, if filing electronically).

Good Faith Penalty Relief Extension 

Internal Revenue Code sections 6721 and 6722 impose penalties for failing to file and furnish an accurate and complete information return, including Forms 1094 and 1095. However, the IRS is extending penalty relief to reporting entities that can show that they made good faith efforts to comply with the calendar year 2016 information reporting requirements. This relief applies to missing and inaccurate taxpayer identification numbers and dates of birth, as well as other information required on the return or statement.

In determining good faith, the IRS will take into account whether an employer made reasonable efforts to prepare for reporting the required information to the IRS and furnishing it to employees and covered individuals, such as gathering and transmitting the necessary data to an agent to prepare the data for submission to the IRS, or testing its ability to transmit information to the IRS. In addition, the IRS will take into account the extent to which the employer is taking steps to ensure that it will be able to comply with the reporting requirements for calendar year 2017.

Extensions Apply to Calendar Year 2016 Reporting Only

The extensions for furnishing Forms 1095-B and 1095-C apply to calendar year 2016 reporting only and have no effect on the requirements for other years or on the effective dates or application of the pay or play provisions. Specifically, the IRS does not anticipate extending due dates or good faith penalty relief to reporting for calendar year 2017.

sip-obamacare

Applicable Dollar Amount Used to Determine PCORI Fee Adjusted to $2.26

The Internal Revenue Service (IRS) recently issued guidance that increases the applicable dollar amount used to determine the Patient-Centered Outcomes Research Institute (PCORI) fee, for plan years that end on or after October 1, 2016 and before October 1, 2017.

Background

PCORI fees are imposed on plan sponsors of applicable self-insured health plans for each plan year ending on or after October 1, 2012 and before October 1, 2019. The fees support research to evaluate and compare health outcomes and the clinical effectiveness of certain medical treatments, services, procedures, and drugs.

For plan years ending on or after October 1, 2015 and before October 1, 2016, the fee for an employer sponsoring an applicable self-insured plan was $2.17 multiplied by the average number of lives covered under the plan. Details on how to determine the average number of lives covered under a plan, as well as various examples, are included in final regulations.

Fee Increase
Pursuant to IRS Notice 2016-64, for plan years ending on or after October 1, 2016 and before October 1, 2017, the fee is $2.26 (multiplied by the average number of lives covered under the plan).

For plan years ending on or after October 1, 2017 and before October 1, 2019, the fee will be further adjusted to reflect inflation.

Be sure to check out our PCORI Fees for Self-Insured Plans section for more information.

self-funding-video-2015

Maximum Individual Mandate Payment Amount for 2016 Released

health-care-reformThe Affordable Care Act’s “individual mandate” provision requires every individual to have minimum essential health coverage for each month, qualify for an exemption, or make a penalty payment when filing his or her federal income tax return. Recently, the Internal Revenue Service (IRS) issued Revenue Procedure 2016-43, which provides information needed to determine the maximum penalty that may be due for 2016.

Calculating the Payment
For tax year 2016, individuals will generally pay whichever of the following penalty amounts is higher:

  • 2.5% of the individual’s yearly household income above his or her applicable filing threshold; or
  • $695 per person for the year ($347.50 per child under age 18).

The maximum penalty is capped at the cost of the national average premium for a bronze-level health plan available through a Health Insurance Marketplace in 2016. According to the IRS, the monthly national average premium for qualified health plans that have a bronze level of coverage and are offered through a Health Insurance Marketplace in 2016 is:

  • $223 per individual; and
  • $1,115 for a family with five or more members.

Our section on the Individual Mandate (Individual Shared Responsibility) provides information on the statutory exemptions from the individual mandate requirement.

sip-obamacare

2016 ACA Transitional Reinsurance Program Form Now Available


The ‘ACA Transitional Reinsurance Program Annual Enrollment and Contributions Submission Form’ for the 2016 benefit year is now available. The form will be used by employers sponsoring certain self-insured plans that use a third-party administrator in connection with claims processing, claims adjudication, and enrollment functions (“contributing entities”) to make contributions required under the Affordable Care Act’s (ACA) Transitional Reinsurance Program.

Reinsurance Contribution Process
To successfully complete the reinsurance contribution process, contributing entities (or third-party administrators or administrative services-only contractors on their behalf) must register on Pay.gov (or confirm a password if such entities registered for the previous benefit years of the program) and submit their annual enrollment counts of the number of covered lives of reinsurance contribution enrollees for the applicable benefit year using the form that is now available. All contributing entities must submit the 2016 Form and schedule reinsurance contribution payment(s) no later than Tuesday, November 15, 2016.



2016 Contribution Amounts

The 2016 reinsurance contribution rate is $27.00 per covered life. For the 2016 benefit year, contributing entities have the option to pay:

  • The entire 2016 benefit year contribution in one payment, no later than January 17, 2017 reflecting $27.00 per covered life; or
  • In two separate payments for the 2016 benefit year, with the first remittance due by January 17, 2017 reflecting $21.60 per covered life, and the second remittance due by November 15, 2017 reflecting $5.40 per covered life.

For more information on how to submit the 2016 Form, please click here.



Additional information on the reinsurance contribution process can be found in our Transitional Reinsurance Program section.

Certain Employers May Receive Marketplace Notices

health-care-reform-road-signHealth Insurance Marketplaces are now sending letters to notify certain employers that one or more of their employees has been determined eligible for advance premium tax credits and cost-sharing reductions and has enrolled in a Marketplace plan. Because these events may trigger employer penalties under the Affordable Care Act’s “pay or play” provisions, employers may seek to appeal an employee’s eligibility determination.

Employer Appeals Process
Marketplaces must notify employers within a reasonable timeframe following any month of the employee’s eligibility determination and enrollment. Employers have 90 days from the date stated on the Marketplace notice to file an appeal. In the appeal, the employer may assert that it provides its employee access to affordable, minimum value employer-sponsored coverage or that its employee is enrolled in employer coverage, and therefore that the employee is ineligible for advance payments of the premium tax credit or cost-sharing reductions.

An appeal will not determine if the employer is subject to a “pay or play” penalty, as only the IRS, not the Marketplace or the Marketplace Appeals Center, can make such determinations.

The Pay or Play section of your HR library features step-by-step guidance, worksheets, and calculators that can help employers understand if they will be subject to a penalty and how to calculate it.

self-funding-video-2015

Cadillac Tax Delayed Until 2020

na-sipwinter2015When President Obama signed the new Consolidated Appropriations Act of 2016 into law in late December, he delayed both the Cadillac and Medical Device taxes by two years, from 2018 to 2020. The legislation also provided for the deductibility of the Cadillac Tax, which is an excise tax of 40% on the “excess benefit” of high cost employer-sponsored coverage, regardless of whether the health plan is fully insured or self-funded.

The cost thresholds associated with “high cost” coverage were initially indexed annually from a base value of $10,200 for individual coverage and $27,500 for other than self-only coverage, adjusted to reflect the age and gender composition of the employee population. The Cadillac Tax was originally intended to take effect in 2013, but in 2010, was postponed from 2013 to 2018. The Medical Device tax was originally projected to raise $29 billion over 10 years to help pay for Obamacare. While the delays were welcome news to employers and medical device makers alike, most are still hoping for outright repeals.

sip-obamacare-whitepaper

ACA Information Reporting Reminder: First Employee Statements Due by End of March

health-care-reform-road-sign-1As a reminder, employers subject to the new Affordable Care Act (ACA) information reporting requirements must furnish the first statements for the 2015 calendar year to employees on or before March 31, 2016.

Information Reporting Requirements
The ACA requires applicable large employers (ALEs)–generally those with 50 or more full-time employees, including full-time equivalents–to report information to the IRS and to their employees about their compliance with the “pay or play” provisions and the health care coverage they have offered, using Forms 1094-C and 1095-C.

Self-insuring employers that are not considered ALEs, and other parties that provide minimum essential health coverage, also must report information on this coverage to the IRS and to covered individuals, using Forms 1094-B and 1095-B.

Compliance Deadlines
The deadlines for calendar year 2015 are as follows:

  • ALEs must furnish employee statements (Form 1095-C) to employees no later than March 31, 2016. The first IRS information returns (Forms 1094-C and 1095-C) must be filed no later than May 31, 2016 (or June 30, 2016 if filing electronically).
    • ALEs with fully insured plans must furnish the Form 1095-C to each employee who was a full-time employee for any month of the calendar year (and who was not in a limited non-penalty period).
    • ALEs with self-insured plans must furnish the Form 1095-C to any employee who enrolls in the health coverage, whether or not the employee was a full-time employee for any month of the calendar year.
  • Small self-insuring employers that are not considered ALEs must furnish statements (Form 1095-B) to covered individuals no later than March 31, 2016. The first IRS information returns (Forms 1094-B and 1095-B) must be filed no later than May 31, 2016 (or June 30, 2016 if filing electronically).

Be sure to review our Information Reporting section for additional information, guidance, and Q&As.