Compliance in 2015

With 2015 just around the corner, we’ve put together a list of some of the most notable changes to group health plans under the Affordable Care Act (ACA).   The most significant reform is the shared responsibility penalty (commonly known as the “pay or play” mandate) that takes effect on January 1.

Please keep in mind this is a high-level overview and does not provide an in-depth or complete analysis of the Affordable Care Act’s impact in 2015.

Pay or Play Mandate

Under the ACA’s employer penalty rules, applicable large employers (ALEs) that do not offer health coverage to their full-time employees (and dependent children) that is affordable and provides minimum value will be subject to penalties if any full-time employee receives a government subsidy for health coverage through an exchange.

An ALE is only liable for a penalty under the pay or play rules if at least one full-time employee receives a subsidy for coverage purchased through an exchange. Employees who are offered health coverage that is affordable and provides minimum value are generally not eligible for these exchange subsidies.

Applicable Large Employer Status: The ACA’s employer penalty rules apply only to ALEs. ALEs are employers with 50 or more full-time employees (including full-time equivalent employees, or FTEs) on business days during the preceding calendar year.  Employers determine each year, based on their current number of employees, whether they will be considered an ALE for the following year. Under a special rule to determine ALE status for 2015, an employer may select a period of at least six consecutive calendar months during the 2014 calendar year (rather than the entire 2014 calendar year) to count its full-time employees (including FTEs).

One-year Delay for Medium-sized Employers:  Eligible ALEs with fewer than 100 full-time employees (including FTEs) have an additional year, until 2016, to comply with the shared responsibility rules. This delay applies for all calendar months of 2015 plus any calendar months of 2016 that fall within the 2015 plan year.

Transition Relief for Non-calendar Year Plans:  IRS transition relief allows eligible sponsors of non-calendar plans to begin complying with the pay or play rules at the start of their 2015 plan years, rather than on January 1, 2015. The transition relief applies to employers that maintained non-calendar year plans as of December 27, 2012, if the plan year was not modified after December 27, 2012, to begin at a later date.

Full-time Employees:  A full-time employee is an employee who was employed on average for at least 30 hours of service per week. The IRS has provided two methods for determining full-time employee status – the monthly measurement method and the look-back measurement method.

Health Plan Affordability:  An employer’s health coverage is considered affordable if the employee’s required contribution to the plan does not exceed 9.5 percent of the employee’s household income for the taxable year (adjusted to 9.56 percent for plan years beginning in 2015).  Because an employer generally will not know an employee’s household income, the IRS provided three affordability safe harbors that employers may use to determine affordability based on information that is available to them. These safe harbors allow an employer to measure affordability based on: the employee’s W-2 wages; the employee’s rate-of-pay income; or the federal poverty level for a single individual. ALEs that use an affordability safe harbor may continue using a contribution percentage of 9.5 percent (instead of the adjusted 9.56 percent) to measure their plan’s affordability.

Minimum Value Coverage:  A plan provides minimum value if the plan’s share of total allowed costs of benefits provided under the plan is at least 60 percent of those costs. The Internal Revenue Service and Department of Health and Human Services (HHS) provided the following approaches for determining minimum value: a Minimum Value Calculator; design-based safe harbor checklists; and actuarial certification. In addition, any plan in the small group market that meets any of the “metal levels” of coverage (that is, bronze, silver, gold or platinum) provides minimum value.

Reporting of Coverage

The ACA requires ALEs to report information to the IRS and to employees regarding the employer-sponsored health coverage. This reporting requirement is found in Code section 6056. All ALEs with full-time employees – even medium-sized ALEs that qualify for the additional one-year delay from the pay or play rules – must report under section 6056 for 2015.

In addition, the ACA requires health insurance issuers and sponsors of self-insured health plans to file an annual return with the IRS reporting information for each individual who is provided with this coverage. Related statements must also be provided to individuals. This reporting requirement is found in Code section 6055.

Both of these reporting requirements become effective in 2015. The first returns will be due in 2016 for health plan coverage provided in 2015. ALEs with self-funded plans will be required to comply with both reporting obligations, while ALEs with insured plans will only need to comply with section 6056. To simplify the reporting process, the IRS will allow ALEs with self-insured plans to use a single combined form for reporting the information required under both section 6055 and 6056.

Reinsurance Fees

Health insurance issuers and self-funded group health plans that provide major medical coverage must pay fees to a reinsurance program for the first three years of the exchanges’ operation (2014-2016). Fully insured plan sponsors do not have to pay the fee directly.  Certain self-insured plans are exempt from the reinsurance fees, such as health flexible spending arrangements (FSA) and health reimbursement arrangements (HRAs) that are integrated with major medical coverage.

For 2015 and 2016, self-insured health plans are exempt from the reinsurance fees if they do not use a third-party administrator in connection with the core administrative functions of claims processing or adjudication or plan enrollment.

HIPAA Certification

Health plans must file a statement with HHS certifying their compliance with HIPAA’s electronic transaction standards and operating rules. The first certification deadline is December 31, 2015.

Controlling health plans (CHPs) are responsible for providing the initial HIPAA certification on behalf of themselves and their subhealth plans, if any. Based on HHS’ definition of CHPs, an employer’s self-insured plan will likely qualify as a CHP, even if it does not directly conduct HIPAA-covered transactions. For employers with insured health plans, the health insurance issuer will likely be the CHP responsible for providing the certification.   It is likely that HHS will issue additional guidance on the HIPAA certification requirement in the future.

This blog is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.