Transcript Exemptions
IF THE AFFORDABLE CARE ACT HAS BEEN DELAYED, WHAT DO I NEED TO WORRY ABOUT NOW? William C. Potter, CPA, JD Postlethwaite & Netterville Baton Rouge, LA October, 2013 What’s Been Deleted or Delayed • • • • • • • • • 1099 reporting - deleted Free choice vouchers – deleted CLASS Act - deleted Automatic enrollment - delayed Nondiscrimination testing - delayed Employer mandate and reporting - delayed Income verification – delayed SHOP – delayed MSPP - delayed Delay of the Employer Mandate • All other provisions continue on: – Individual mandate – expected to leave about 1 million people scrambling to get insurance – Monetary caps on annual out–of–pocket maximums – Elimination of lifetime and annual limits – New wellness plan rules – Notice of exchange options Grandfathered Plan • Plan in existence on March 23, 2010 and employer has maintained the status quo • Only about 27% are GF plans • Don’t have to: – Offer free preventive services – Satisfy nondiscrimination – Enhance review and appeals process – Meet cost sharing restrictions Additional Medicare Tax • Starts January 1, 2013 • Wages - an additional 0.9% employee only • Threshold amounts - $250,000 MFJ, $125,000 MFS, $200,000 all others • Net Investment Income – an additional 3.8% • Same thresholds and applies to trusts • Statute – a couple of paragraphs • Proposed regs – 100+ pages • Planning for trusts and estates • S Corps New Fees/Taxes • Tanning bed tax • DME tax • Prescription drug fee – other than orphan drugs • PCORI fee • Transitional reinsurance fee • Health insurance tax New Regulations • You pay a fine if your spouse or dependent is not covered • Minimum essential coverage – Pretty much any group health plan meets this – Watch for proliferation of “skinny plans” • Small fines will incentivize more people to go without coverage – Particularly since no issue with pre-existing condition Individual Mandate YEAR Applicable Dollar Amount 2014 Penalty is $95 per adult and $47.50 per child (up to $285 for a family) or 1.0% of family income, whichever is greater 2015 Penalty is $325 per adult and $162 per child (up to $975 for a family) or 2.0% of family income, whichever is greater. 2016 Penalty is $695 per adult and $347.50 per child (up to $2,085 for a family) or 2.5% of family income, whichever is greater. Individual Mandate • • • • • • • • • • Exemptions: coverage is unaffordable (exceeds 9.5% of household income); Not required to file an income tax return ; Native Americans - eligible for IHS or participates in a healthcare sharing ministry; short lapse in coverage = less than three months; suffered a hardship – 11 listed events, such as, eviction and bankruptcy; dependent; Qualify for the foreign earned income exclusion People who have no plan options in their states health insurance exchange Religious conscience – member of a recognized religious sect (Amish) or meets the requirements of Section 1402(g)(1) which requires an annual application Subsidies for Individuals • Three types for insurance purchased through an Exchange – Premium limits – Cost-sharing limits (co-pays, deductibles, coinsurance) – Out-of-pocket spending • Subsidy amount is dependent on income with respect to Federal Poverty Level (FPL) • For 2012, 400% of FPL is $44,680 for an individual and $92,200 for a family of 4 Subsidies - 2014 Income Level in Max % of Income Level in Cost sharing terms of FPL Income Paid for terms of FPL Limit Insurance Up to 133% 2% 150 – 200% 6% 133 – 150% 3 – 4% 200 – 250% 13% 150 – 200% 4 – 6.3% 250 – 300% 27% 200 – 250% 6.3 – 8.05% 300 – 400% 30% 250 – 300% 8.05 – 9.5% Income Level in terms of FPL Out-of-pocket Spending Limits 300 – 400% 9.5% 100 – 200% $2,016(I)/$4,03 3(F) 200 – 300% $3,025(I)/$6,05 0(F) 300 – 400% $4,033(I)/$8,06 7(F) Large Employer Mandate • Delayed until 2015 • Questionable whether Obama could delay it • Applicable large employer – Employees exceed 50 full-time – Full-time: average of at least 30 hours per week • Big issues with definitions: – Employee – common law test – Seasonal – Who is an employer? Large Employee Mandate (cont.) • • • • • Measurement periods Stability period Coverage Importance of HR records Penalties – Offering no coverage – Offering coverage but fail to cover at least one qualifying employee • To be subject to the penalty at least one employee must go on the Exchange and get tax subsidies Collecting the Individual Mandate or Excess Subsidies • No teeth – no fines, no levies, no interest • Can withhold from refund or SS payment • Can sue, but recovery limited to 2xs penalty New W-2 Rules • • • • Guidance from Notice 2012-9 Regulations to come Reporting starts in 2013 for 2012 W-2s Exempt from filing: < 250 W-2s in the preceding year including those issued by a PEO, Indian tribal governments, and self-insured church plans not subject to COBRA, mutliemployer plans W-2 Rules • No reporting required for a terminated employee requesting their W-2 before year end • Coverage included: Major medical, EAP if a group health plan, individual policies if considered a group, indemnity policies (AFLAC) purchased on a pretax basis, onsite clinic subject to COBRA, Er flex credits applied to FSA in limited situations PCORI Fee • Funds the Patient Centered Outcomes Research Trust Fund – which pays for the Patient Centered Outcomes Research Institute to promote evidenced based medicine • Insured and self-insured plans to pay a poll tax based on the average number of lives covered • Plan years ending on or after 10/1/12 and before 10/1/19 - $1/head/12; $2/head/after PCORI Fee • Applies to most governmental plans • Applies separately to HRAs • Applies to FSAs that are not HIPAA excepted • Form 720 – calendar year plan due 7/31 • Plan sponsor responsible for filing for self-funded plans Controlled Group • Even if employer mandate is not resurrected these rules will be applicable to nondiscrimination • Businesses organized in multiple forms may be considered as a single employer • Controlled groups can be parentsubsidiary, brother-sister, combinations, or affiliated service groups • Existing tax law applies to corporations, this brings in partnerships, LLC’s Parent-subsidiary • Control exists if parent owns more than 80% of the subsidiary • Could involve multiple subsidiaries Brother – sister controlled group • The same five or fewer individuals own more than 80% of the related entities, AND • Effectively control more than 50% (identical ownership) • Must consider the rules of attribution and community property Example Percentage of Ownership Member A Corp B LLC Effective A 80% 20% 20% B 10% 50% 10% C 5% 15% 5% D 5% 15% 5% Total 100% 100% 40% The four owners have more than 80% of A and B, so that requirement is satisfied. But identical ownership is only 40% so they fail the 50% test. They are two separate employers. Affiliated Service Groups • Related entities may or may not have ownership relationships • Performing services to or on behalf of the other entity, and when capital is not a material income producing factor • Can be a subjective determination, particularly since the proposed regulations were pulled in 1993 Indirect Employment Taxes • PCORI fee • Funds the Patient Centered Outcomes Research Trust Fund – which pays for the Patient Centered Outcomes Research Institute to promote evidenced based medicine • Insured and self-insured plans to pay a poll tax based on the average number of lives covered • Plan years ending on or after 10/1/12 and before 10/1/19 - $1/head/12; $2/head/after Transitional Reinsurance Fee • $25 billion collected from 2014 -2016 from insured and self-insured plans to stabilize the individual market • $5 billion to repay ERRP • $12 in 14, 8 in 15, and 5 in 16 • Expected to be $63.50 per covered life in 14 • Tax deductible and can be paid from plan assets • Submit info by 11/15 receive bill within 15 days Health Insurance Tax • Annual fee imposed on health insurance companies; including, multiple employer self-funded plans not using a VEBA • Exceptions: – Self-insured single employer – Governmental entity – VEBA Health Insurance Tax • Fees to be collected: – 2014 $8 billion – 2015 $11.3 billion – 2016 $11.3 billion – 2017 $13.9 billion – 2018 $14.3 billion – 2019 thereafter indexed Health Insurance Tax • Annual fee to be paid by each insurer is apportioned – Numerator = net premiums underwritten in prior year, with some exclusions – Denominator = aggregate of net premiums Risk Adjustment • A permanent program • Applies to non-grandfathered individual and small group plans • Modeled after Medicare • Transfers funds between health plans based on the relative risk of the insureds • Designed to compensate for adverse selection Risk Corridor • Temporary 2014 – 2016 • Used to mitigate pricing risk with movement to community rating • Limits insurers gains and losses • Modeled after Medicare Part D • Plans will set an income target, if income is within 3%, the plan keeps all; between 3-8% 50% to/from gov’t; over 8% 80% to/from gov’t Notice of Exchange Options • All employers subject to FSLA must provide the notice to all employees by October 1 • Provide to all new employees upon hire, within 14 days from date of hire will be deemed timely for 2014 • Two versions of the notice – Notice for employers offering coverage – Notice for employers not offering coverage Notice of Exchange Options • Employers offering coverage – page 3 is optional but matches Marketplace Employer Coverage Tool and should the employer mandate come into play in 2015 this will impact the penalty for affordability and MEC • Includes revised COBRA notice • May want to add to mini-COBRA notice • Electronic delivery of the notice must follow ERISA standards Form 8928 • Excise taxes for the failure to comply with group health plan mandates • Due date? Same as the employer’s income tax return without extension • How much? Varies with the mandate, but generally $100 per individual, per day • Exceptions? Yes, where exercising reasonable diligence or reasonable cause and it is timely corrected • Correction? Restoration to the extent that the failure had not occurred Group Health Plan Mandates • • • • • • • • • COBRA – is the cafeteria plan FSA included in the notice? HIPAA portability, access, renewability, nondiscrimination – this includes Special Enrollment Rights CHIPRA notice Genetic Information Nondiscrimination Act (GINA) Mental Health Parity Newborn’s and Mother’s Health Protection Act Michelle’s Law – coverage of dependent students on medical leave for up to 12 months Health Savings Account contribution comparability requirements – does not apply to employer contributions through a cafeteria plan Archer MSA contribution comparability requirements ACA adds §9815 • Incorporates by reference a portion of the PHSA, for non-grandfathered plans: – Nondiscrimination – Summary of Benefits and Coverage – Appeals process – 90 day waiting period – FT employees – Participation in clinical trials SBC • Provided to participant and beneficiaries • Due at open enrollment, special enrollment, and upon request within 7 business days • Needed for standalone HRAs and for EAPs • Can be used in connection with Summary of Material Modification due 60 days prior to change • Modified for 2014 to address whether minimal essential coverage and the minimum value standards are met Nondiscrimination • Does not apply to grandfathered plans • Compliance not required until regulations issued and time for compliance allowed • Imports definition of Highly Compensated Individuals applied to selfinsured plans – The five highest paid officers; or – More than 10% owner; or – The highest paid 25% of all employees Litigation Risks • Thinking of workforce realignment? • Interference under ERISA §510 and/or ACA Whistleblower • Whistleblower – no adverse action against an employee for receiving a premium tax credit, this may include a reduction in hours • Complaint filed with OSHA under the Consumer Product Safety Improvement Act • Damages – reinstatement, back pay with interest and special damages for discharge or discrimination ERISA §510 • Unlawful to interfere with present and future entitlements • No adverse action for exercising rights available under the plan • No adverse action with the attainment of any right which may be come available • Limiting new hire hours may be viewed differently than cutting current employee hours • Business decision to limit ACA penalties should not infer intent to interfere QUESTIONS? Bill Potter [email protected] Brandon Lagarde [email protected] Steve Mehaffey [email protected] www.healthcarereformlouisiana.com