Health Care Reform: Answers for Employers

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1 For Immediate Release: April 2010 Issue 2010 Volume 5 Contact: Lisa R. Nelson, Esq. (858) Health Care Reform: Answers for Employers The Patient Protection and Affordable Care Act (PPACA) (PL ), along with its companion bill, the Health Care and Education Affordability Reconciliation Act of 2010 (HCEARA) (H.R. 4872) were signed into law March 23, 2010 and March 30, 2010, respectively. This new sweeping health care reform legislation is just the beginning. Over the next few years the various responsible regulatory agencies will draft and issue regulations that will define, clarify and implement the provisions of the PPACA and HCEARA. In the meantime, Barney & Barney will be there to guide employers through the maze and provide answers based on the information currently available. Below are some of the questions Barney & Barney received during the Health Care Reform Webinar hosted April 8, 2010 by Lisa R. Nelson, Esq., Director of Compliance & Regulatory Affairs. Answers reflect Barney & Barney s current understanding of the new law and are not intended as legal advice. Employers should consult with their legal counsel for guidance regarding compliance with the new law. HEALTH INSURANCE MARKET REFORM Q: Regarding immunizations, we found that while our plan currently says that there is no co-pay, some doctor's offices code immunizations as either a doctor visit or a nurse visit and charge the co-pay. Will this preventative coverage change eliminate this practice? A: Additional regulatory guidance is needed to clarify this provision. Based on current understanding, any mandated preventative coverage must have no participant cost-sharing (i.e., co pays). Q: Is there any restriction on employee cost sharing for non-preventative care? A: Yes. Beginning January 1, 2014, the maximum out-of-pocket per participant per year will be limited to the maximum out-of-pocket for Health Savings Account (HSA)-compatible High Deductible Health Plans (e.g., for 2010 that limit is $5,950/$11,900). Q: For PPOs with an annual deductible (where the employee pays the first $1,000 out-of-pocket before benefits are paid by the plan), does the preventative coverage mandate apply to them? A: Yes, the preventative coverage mandate does apply. The deductible must be waived, and there must be no coinsurance or copays for qualified preventative services. Q: What constitutes preventative care? A: Evidenced-based items or services with a rating of A or B in the current recommendations of the U.S. Preventative Services Task Force; immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; for infants, children and adolescents: preventative care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration; for women: preventative services and screenings recommended by the U.S. Prevention Task Force regarding mammography, breast cancer screenings and any other recommendations issued. Additional regulatory guidance is needed to clarify this provision. 1

2 Q: Relative to provider choice -where an enrollee can choose any provider in the network as the Primary Care Physician (PCP) - can enrollees choose a cardiologist, immunologist, etc., as their PCP, or only an internist or family practice healthcare provider? A: Based on current understanding, enrollees may choose any in-network provider as their PCP when the plan requires designation of a PCP. Logic suggests some specialists would be excluded; however, additional regulatory guidance is needed to clarify this provision. Q: Does guaranteed issue/renewability contain any pricing controls? A: Additional regulatory guidance is needed to clarify this provision. Beginning January 1, 2014, insurance companies in the small group and individual markets will be required to charge the same premiums for all individuals, taking into consideration only factors related to age, smoking status, plan design and the geographic region of the individuals insured. Q: What is the effective date for the insurance market reform provisions? A: The first day of the plan year on or after September 23, If your plan year is January 1, 2011, this will be the effective date for these provisions (insurance market reform provisions apply to fully-insured and selffunded small group, large group and individual plans): lifetime limits prohibited; annual limits restricted; rescissions prohibited; preexisting condition exclusions prohibited for children under age 19; children coverage up to age 26; preventative coverage cost-sharing prohibited; discrimination prohibited; appeals process required; and primary care provider choice expanded. Q: What increases in renewal premiums are you seeing since the Acts were passed? A: The Acts were passed just a couple weeks ago. None of the provisions are effective yet. Costs are expected to go up. When costs will go up and by how much is still unknown. Q: Are the annual maximum on out-of-pocket limits based only on premium out-of- pocket cost or does it include co-pays for services? A: The restriction on out-of-pocket maximums effective January 1, 2014 does not appear to apply to premiums paid by employees; only to deductibles, copays and coinsurance. Additional regulatory guidance is needed to clarify this provision. DEPENDENT COVERAGE Q: Do adult children up to age 26 who want to remain on their parent s group health plan have to be covered on their parent taxes in order to be covered? A: No. If the group health plan offers dependent coverage, they must offer coverage up to age 26, regardless as to whether the adult child is a tax dependent, student, or unmarried. Q: Will early retiree plans that do not currently offer dependent coverage be required to offer dependent coverage up to age 26? A: No. There is no requirement for early retiree plans or any other plan to offer or pay for dependent coverage. Where a plan does offer dependent coverage, they must offer dependent coverage up to the age of 26. There is no requirement for the former employer to pay any of the premiums for early retirees or their spouses or dependents. Q: Do dependents (adult children) age 18 to age 26 have to be full-time students to qualify for coverage under their parent s health plan? A: Adult children do not have to be students in order to be eligible for coverage on their parent s health plan. 2

3 Q: Can the adult child be married and still be eligible for coverage on their parent s plan? A: Yes. The adult child is eligible whether married or not. The spouse of the adult child is not eligible for coverage on the parent-in-law s health plan. Q: If a plan currently offers coverage to the children of domestic partners, will it be required to offer coverage to domestic partner s children up to age 26? A: Plans that offers dependent coverage, must offer dependent coverage up to age 26. We can presume this includes dependent coverage for domestic partner s children where such coverage is offered. Additional regulatory guidance is needed to clarify this provision. Note: The domestic partner coverage is generally regulated by the State. The new federal laws do not impact state requirements regarding domestic partners. FLEX SPENDING ACCOUNTS (FSA) AND HEALTH SAVINGS ACCOUNTS (HSA) Q: Does the $2,500 cap on FSA contributions apply per employee or does the cap apply to the employee and dependents combined? A: The cap is the total pre-tax amount permitted per employee account. Additional regulatory guidance is needed to clarify this provision. Q: Is the $2,500 FSA limit applicable only to the Medical FSA, and not the Dependent Care FSA? A: Yes, the limit currently appears to only apply to the Medical FSA. Additional regulatory guidance is needed to clarify this provision. Q: Are there any changes to HSAs? A: Yes. HSA distributions for non-qualified health care expenses will be taxed at 20% beginning January 1, In addition, beginning January 1, 2011, over-the-counter medications and medical devices dispensed without a doctor s prescription will no longer be qualified health care expenses. EMPLOYER MANDATE Q: We are an employer with over 500 employees. Does the new law mandate coverage of all full-time employees? A: Employers with more than 51 full-time (FT) and full-time equivalent (FTE) employees must provide affordable, minimum essential coverage to their FT/FTE beginning January 1, 2014 OR- they may be subject to a penalty if one or more employees seek a premium assistance subsidy in order to obtain coverage through a state-based Exchange. In addition, the new law will require employers with more than 200 employees to automatically enroll their FT employees in their medical plans. Employees may decline the coverage only if they provide proof annually that they are covered under another employer s medical benefits plan. Q: How is full-time employee defined? A: Full-time employees work 30 or more hours per week. Seasonal and temporary employees may be exempt. Additional regulatory guidance is needed to clarify this provision. Q: Are the penalties (i.e., $2,000 per employee or $3,000 per employee that received premium assistance, whichever is less) levied annually or monthly? A: Annually. Additional regulatory guidance is needed to clarify this provision. Q: How do employers with 200 or more employees automatically enroll new employees into their group health plan if the employee doesn t provide the required information? A. Additional regulatory guidance is needed to clarify this provision. 3

4 Q: Are employers required to offer free choice vouchers to part-time employees eligible for the employer s group health plan? A: No. The employer mandate provisions only apply to full-time employees. Q: How does an employer determine the employee s household income as required to determine eligibility for a free choice voucher and in determining eligibility for participation in the Exchange due to unaffordable coverage (e.g., unaffordable coverage is defined as coverage with an employee premium that is more than 8-9.5% of the employee s household income or where the total covered cost does not exceed 60%)? A: Additional regulatory guidance is needed to clarify this provision. The employer is not required to determine Exchange eligibility. The Exchange will make this determination. Q: Will employees be taxed on the amount of the free choice voucher or excess monies left over from the free choice voucher? A: No. The voucher and the excess monies are tax-free. Additional regulatory guidance is needed to clarify this provision. Q: We are an employer with less than 50 employees. We currently offer a plan where we pay 100% of the employees cost. Are we penalized if we do not cover any portion of dependents cost? A: The employer mandate does not apply to you since you have less than 50 employees. Employers with 51 or more full-time and full-time equivalent employees will be subject to the employer mandate. Paying for dependent coverage is not required. Q: What if we decide not to offer health insurance to any employee? A: Beginning January 1, 2014, employers with more than 50 employees that do not offer coverage to their employees may be subject to a fine of $2,000 per employee (excluding the first 30 employees). The penalty will apply only after at least one employee seeks premium assistance through a state-based Exchange. Q: Will the employer mandate apply to temporary, seasonal and leased employees? A: Additional regulatory guidance is needed to clarify this provision. Seasonal and temporary employees appear to be left out of these rules. Leased employees are included in the definition of a full-time employee. Q: The employer mandate requires offered coverage to be affordable (i.e., the employee s premium is less than 9.5% of the household income OR- covered at least 60% of the total costs. Does this include spouses and children? A: Additional regulatory guidance is needed to clarify this provision. At this time, there is no requirement to cover spouses or dependents. Q: If our company s current definition of a full-time employees is 32 hours worked per week (or more), are we required to change our policy to redefine full-time as those working 30 hours per week (or more)? A: Yes. For purposes of applying the employer mandate, full-time will be considered those working 30 hours or more per week. Again, the employer mandates and penalties only apply to employers with more than 50 employees. Q: In determining FTE, what if employees work different hours every week (i.e., sometimes 30 or more, and sometimes less). How will we keep track of eligibility- on a monthly or yearly basis? A: Additional regulatory guidance is needed to clarify this provision. We suspect the regulations will specify the average number of hours worked over some prior time period such as a month, quarter or year. 4

5 NOTICE & REPORTING REQUIREMENTS Q: Does reporting the values of employer health coverage on Form W-2 mean that the coverage will be considered taxable income to the employee? A: No. The value of coverage will not be taxable. The intention is to increase transparency and assist with cost effectiveness research. Q: Does the cost of coverage included on the Form W2 include the cost of dental and vision coverages? A: Yes. The cost of coverage reported on the Form W2 will include medical, dental and vision, but not FSA or HRA. GRANDFATHERED PLANS Q: Is a change in providers considered a plan design change which would eliminate an employer s grandfathered plan status? A: Any change in carriers, co-pays, plan design, etc., will eliminate the employer s grandfathered plan status. A change in health care providers on behalf of the employee would not constitute a plan design change. Additional regulatory guidance is needed to clarify this provision. Q: Plans typically renew annually with new rates but no change in coverage; does that mean that we lose grandfather plan status? A: Additional regulatory guidance is needed to clarify this provision. SMALL BUSINESS Q: What is the definition of small business? A: For purposes of participating in the Exchange and eligibility for the small business wellness grants, small business is defined as having fewer than 100 full-time or full-time equivalent employees. For the purpose of the small business tax credit, small business is defined as employers with fewer than 25 full-time or full-time equivalent employees meeting the annual average wage requirements. Additional regulatory guidance is needed to clarify this provision. Q: We are an S corporation paying for about 80% of our employees health coverage. We currently deduct the cost from our business income. How is the Business Tax credit different now? In addition to the deduction we take for the cost, will we now be eligible for the additional tax credit? A: Small businesses meeting the small business tax credit criteria (i.e., having less than 25 employees and an average annual wage of less than $50,000 AND- where the employer pays at least 50% of the cost of coverage) will be eligible for a general business tax credit to offset premium costs. You may not deduct from your business expenses the cost of these health costs for amounts in which you received a tax credit. FEDERAL LONG-TERM CARE PROGRAM (CLASS) Q: What does CLASS stand for? A: Community Living Assistance Services & Supports Act. Q: Is the $65 payroll deduction for CLASS a monthly or annual deduction? A: Additional regulatory guidance is needed to clarify this provision. Logic would suggest monthly. 5

6 FINANCING Q: Will the 40% excise Cadillac tax on plans with premiums in excess of $10,200 (individuals)/$27,500 (families) increase between now and when the provision becomes effective in 2018? A: Additional regulatory guidance is needed to clarify this provision. The amounts were based on assumptions for premium increases between 2010 and If the assumptions prove incorrect, adjustments likely will be made. Q: On the Cadillac tax, can you expand on how the FSA is included in that. Not all employees elect the FSA, so how do we include that? A: Additional regulatory guidance is needed to clarify this provision. At this time, the understanding is that the cost of coverage for medical, FSA, HSA, HRA and supplemental coverages is to be included in the premium threshold calculation. Q: Are the Cadillac tax thresholds based on premiums only or an overall value of the plan? A: The premium threshold is based on the total amount of premiums in excess of the threshold amount. Additional regulatory guidance is needed to clarify this provision. Q: On the excise Cadillac tax that begins January 1, 2018, is the 40% including the employee portion? Do we still get the Section 125 benefit? A: The 40% excise tax is the amount of tax applied to any premium amounts that exceed the threshold amount (i.e., $10,200 for individuals and $27,500 for families). The premium threshold includes the total premium amount, including the employee portion. There will be no changes to the IRC 125 cafeteria plan tax treatment of these plans. Q: For the Medicare Part A payroll tax increase, when is that tax calculated? We may have employees who may not have made the $200,000 (individual)/$250,000(family) mark until the end of the year. A: The Medicare Part A payroll tax increase is effective January 1, Additional regulatory guidance is needed to clarify this provision. Q: Does the Medicare Part A payroll tax of 3.8% on unearned income only applies to those making over $200,000 (individual)/$250,000(family) annually? A: Yes. ADDITIONAL GUIDANCE Barney & Barney will provide updates and further guidance as it becomes available. If you have any questions, contact your Barney & Barney representative. For more information, see: Barney & Barney LLC is a California based privately held risk management and insurance brokerage firm providing solutions, services and products in commercial property and casualty insurance, employee benefits, workers compensation, executive personal lines, and surety for the past 100 years. The firm also offers value added services in alternative risk financing, business continuity and loss control. 6

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