HEALTH REFORM AND MULTIEMPLOYER PLAN COVERAGE 2014 AND BEYOND

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1 HEALTH REFORM AND MULTIEMPLOYER PLAN COVERAGE 2014 AND BEYOND ABA SECTION OF LABOR AND EMPLOYMENT LAW EMPLOYEE BENEFITS COMMITTEE MID- WINTER MEETING 201 BLITMAN & KING LLP Franklin Center, Suite North Franklin Street Syracuse, New York (P) (315) (F) (315) BLITMAN & KING LLP The Powers Building, Suite West Main Street Rochester, New York (P) (585) (F) (585) BLITMAN & KING LLP 800 Troy-Schenectady Road 2 nd Floor Latham, New York (P) (315) (F) (518) February 2013 i

2 TABLE OF CONTENTS Page I. OVERVIEW... 1 A. THE PATIENT PROTECTION AND AFFORDABLE CARE ACT OF II. AMERICAN HEALTH BENEFIT EXCHANGES... 2 A. EXCHANGE BASICS... 2 B. SMALL BUSINESS HEALTH OPTIONS PROGRAM ( SHOP )... 3 C. CONSUMER OPERATED AND ORIENTED PLAN (CO-OP)... 3 D. INTERSTATE HEALTH CARE CHOICE COMPACTS... 4 E. REGIONAL AND SUBSIDIARY (LOCAL) EXCHANGES... 4 III. THE INDIVIDUAL MANDATE... 4 A. OVERVIEW... 4 B. AFFORDABILITY ASSISTANCE... 5 IV. MEDICAID EXPANSION... 5 A. MEDICAID ELIGIBILITY... 5 B. ENHANCED SUPPORT FOR CHILDREN S HEALTH INSURANCE PROGRAMS ( CHIP )... 6 V. EMPLOYER RESPONSIBILTIIES... 6 VI. INCENTIVES FOR SMALL EMPLOYERS... 7 A. SMALL BUSINESS TAX CREDITS... 7 VII. FINANCING HEALTH REFORM... 7 A. ANNUAL FEES AND EXCISE TAXES... 7 ii

3 HEALTH REFORM: 2014 AND BEYOND I. OVERVIEW A. THE PATIENT PROTECTION AND AFFORDABLE CARE ACT OF On March 23, 2010, President Obama signed comprehensive health reform, the Patient Protection and Affordable Care Act ( PPACA ), into law. The PPACA was later amended by the Health Care and Education Reconciliation Act of 2010 ( HCRA ). Many of the law s key requirements are effective beginning in The following summary explains these key health reform provisions relating to the establishment of state-run American Health Benefit Exchanges, and the law s most controversial requirement, the individual mandate. 2. On June 28, 2012, the Supreme Court of the United States upheld the PPACA s individual mandate to purchase health insurance as a valid exercise of Congress s taxing power. National Federation of Independent Businesses v. Sebelius, 567 U.S. (2012). 3. The following consumer protections take effect beginning January 1, 2014: (a) annual limits on the dollar value of coverage are prohibited; (b) grandfathered group health plans will be required to cover all children under the age of 26, regardless of whether such children have other employer sponsored coverage available; (c) grandfathered individual market contracts must eliminate lifetime dollar limits on the dollar value of coverage (group health plans were required to eliminate these limits for plan years beginning on or after September 23, 2010); (d) pre-existing condition exclusions are prohibited; (e) waiting periods of greater than 90-days for employer based coverage are prohibited; (f) enrollees cost sharing must be limited - in the small-group market deductibles can be no more than $2,000 for an individual or $4,000 for a family (which will be indexed for inflation in 2014), and in all markets, plans must limit enrollees out-of-pocket expenses for covered services (including the deductible) to $5,950 for an individual or $11,900 for a family (which will be indexed for inflation in 2014); (g) all insurance policies must provide for guaranteed issue and renewability, and allow rating variation based only on age, premium rating area, family composition, and tobacco use; (h) all individual 1

4 and non-grandfathered plans must cover participation in clinical trials; and (i) newly sold individual and small group plans must cover essential health benefits. PPACA II. AMERICAN HEALTH BENEFIT EXCHANGES A. EXCHANGE BASICS 1. The PPACA requires states to establish Exchanges that will provide competitive marketplaces for individuals and small employers to directly compare available private health insurance options on the basis of price, quality, and other factors. The Exchanges, which will become operational by January 1, 2014, will increase competition in the health insurance marketplace, improve affordable health coverage choices, and give small businesses the same purchasing clout as large businesses. The Exchanges will also be responsible for certifying, recertifying, and decertifying qualified health plans that can participate in the Exchange, providing customer assistance (including identifying Navigators for consumer education), and providing eligibility and enrollment assistance. PPACA 1301, 1302, and To participate in an Exchange, insurers must offer a range of plans that meet certain minimum benefit requirements, including ambulatory care, emergency care, hospitalization, prescription drugs, maternity and newborn care, mental health and substance abuse treatment, rehabilitative and habilitative care, laboratory services, preventive and wellness services, chronic disease management, and pediatric services (including oral and vision care). Exchange plans, referred to as qualified health plans ( QHPs ), will also be required to meet requirements relating to marketing, choice of providers, and plan networks. PPACA 1301 and QHPs must be offered on the Exchanges which provide coverage at the following levels: bronze, silver, gold, and platinum. The actuarial value (percent expense paid by the insurer) of the expected essential health benefits costs each plan will cover will determine the QHP s status as follows: Bronze level- 60% of the full actuarial value of the benefit package; silver level 70% of the full actuarial value of the benefit package; gold level 80% of the full actuarial value of the benefit package; and platinum level 90% of the full actuarial value of the benefit package. PPACA Exchanges will be established as independent state agencies or as non-profit entities, and will be overseen by the state. If a state fails to establish an Exchange, HHS will step in and administer an 2

5 Exchange in the state. PPACA B. SMALL BUSINESS HEALTH OPTIONS PROGRAM ( SHOP ) EXCHANGE 1. Beginning in 2014, small businesses with up to 100 employees will have access to SHOP Exchanges, which will expand their health coverage purchasing power. PPACA Beginning in 2017, businesses with more than 100 employees may also be eligible to purchase coverage through the SHOP Exchanges. PPACA Federal subsidies will not be available to help with the purchase of this coverage. Further, multiemployer plans will not be eligible to purchase coverage through a SHOP Exchange on behalf of contributing employers. 3. The Agencies have indicated that multiemployer plans that conform to certain requirements applicable to QHPs will be eligible to be considered SHOP plans. In addition, insured multiemployer plans may also be considered aggregators of premium contributions and arrangers of coverage through the SHOPs for plan participants. This would allow insured multiemployer plans to maintain the group for purposes of providing benefits in addition to those offered on the Exchange (HRAs, WRAs, life insurance, etc.). The Departments of Labor, Health and Human Services, and Treasury have indicated that detailed guidance regarding the interaction of multiemployer plans (both insured and self-insured) and the Exchanges will be issued in the future. FR. Doc Filed 3/12/12; Publication date 3/27/12. However, this guidance has yet to be provided, and there has been no further indication regarding multiemployer plan coverage and SHOP Exchanges. C. CONSUMER OPERATED AND ORIENTED PLAN (CO-OP) 1. The PPACA requires the Exchanges to include consumer-run, CO- OP plans as an alternative to traditional, for-profit plans. The PPACA requires HHS to award start-up loans and solvency grants to eligible CO-OP applicants to enable each state to have at least one CO-OP. PPACA The federal government has awarded the Freelancers Union $380 million in low interest and no interest loans to establish CO-OPs in New York, New Jersey, and Oregon. 2. At least two-thirds of all insurance contracts issued by a CO-OP must be QHPs issued in the individual and small group markets. 76 Fed. Reg (Dec. 13, 2011). 3

6 D. INTERSTATE HEALTH CARE CHOICE COMPACTS 1. Beginning in 2016, interstate health care choice compacts, which offer QHPs in all participating states, will become operational. This will allow insurers in the individual and small group markets to offer a QHP nationwide. These plans will only be subject to the state mandate laws of the state in which they are issued, but will be required to comply with all of the PPACA mandates for qualification as a QHP. PPACA E. REGIONAL AND SUBSIDIARY (LOCAL) EXCHANGES 1. States also have the option of creating regional exchanges, which encompass two or more states using the same blueprint or subsidiary exchanges that serve a geographically distinct area. PPACA III. THE INDIVIDUAL MANDATE A. OVERVIEW 1. Beginning in 2014, all U.S. citizens and legal residents who can afford health coverage will be required to have such coverage in place. Those who do not have coverage will be required to pay a financial penalty for each year in which they do not have coverage. PPACA 1501; IRC 5000A. 2. Exemptions from the financial penalty will be granted for financial hardships, certain religious groups, Native Americans, Alaska Natives, undocumented immigrants (who will also not be eligible to purchase coverage on a health insurance exchange), incarcerated individuals, those with incomes below the federal tax filing threshold (for 2012, the threshold for those under the age of 65 was $9,750 for single individuals and $19,500 for married couples), and individuals for whom the lowest cost silver option exceeds 9.5% of household income. PPACA 1501; IRC 5000A. 3. The financial penalty will be phased in from 2014 through Beginning in 2014, the penalty is $95 per adult and $47.50 per child (up to $285 for a family) or 1% of family income, whichever is greater. For 2015, the penalty is $325 per adult and $ per child (up to $975 for a family) or 2% of family income, whichever is greater. For 2016 and beyond, the penalty is $695 per adult and $ per child (up to $2,085 for a family) or 2.5% of family income, whichever is greater. The penalty is pro-rated for the number of months without coverage, and there is no penalty for a 4

7 single gap in coverage of less than 3 months in a year. After 2016, the penalty amounts will be subject to annual cost-of-living increases. PPACA 1501; IRC 5000A. B. AFFORDABILITY ASSISTANCE 1. Premium Assistance Credits Eligible individuals and families with incomes between % of the Federal Poverty Level ( FPL ) (between $14,856 and $44,680 for an individual, and $23,050 and $92,200 for a family of four in 2012) will be eligible for refundable and advance premium credits to help with the cost of health coverage purchased through an Exchange. In order to be eligible to purchase coverage through an Exchange, an individual must either not have employment-based coverage available to them, or such coverage must be unaffordable to them. Individuals whose contribution to their employment-based coverage is greater than 9.5% of their modified adjusted gross income will be eligible to purchase coverage through an Exchange. PPACA 1401; HCRA 1001(A). 2. Cost-Sharing Subsidies Cost-sharing subsidies will also be provided to eligible individuals and their families with incomes between % of FPL. These subsidies will reduce the amount of out-of-pocket expenses that individuals pay for coverage under an Exchange plan, therefore increasing the actuarial value of the coverage. Without a subsidy, the actuarial value of the silver level plan is 70% - this means that the plan will cover 70% of health care costs. For individuals between % of FPL the value of the coverage will be increased to 94% with the subsidy, for individuals between % of FPL the value of the coverage will be increased to 87%, and for individuals between % of FPL, the value of the coverage will be increased to 73%. PPACA 1402; HCRA 1001(B). IV. MEDICAID EXPANSION A. MEDICAID ELIGIBILITY 1. Beginning in 2014, Medicaid eligibility will be expanded to include all individuals under the age of 65 with modified adjusted gross incomes of up to 133% of the federal poverty level (currently $14,856 for a single individual and $30,657 for a family of four). PPACA

8 B. ENHANCED SUPPORT FOR CHILDREN S HEALTH INSURANCE PROGRAMS ( CHIP ) 1. CHIP is authorized through 2019 and federal funding will continue at current eligibility levels through States will also receive a 23% increase to the federal CHIP match reimbursement rate beginning in PPACA V. EMPLOYER RESPONSIBILTIIES A. The law does not contain a requirement that employers provide health coverage. However, employers with 50 or more full-time equivalent employees who do not offer minimum essential health coverage will be assessed a fee of $2,000 for each employee (in excess of 30 employees) if any employee receives a premium credit through an Exchange. PPACA 1513; IRC 4980H. B. Employers with 50 or more employees that do offer minimum essential health coverage, but have at least one employee who receives a premium credit through an exchange will be required to pay the lesser of $3,000 for each employee who receives a premium credit or $2,000 for each full-time employee (in excess of 30 employees). PPACA 1513; IRC 4980H. C. The PPACA also requires large employers with more than 200 employees that offer coverage to automatically enroll employees into the lowest cost premium plan available if the employee does not sign up for employer coverage or does not affirmatively opt out of coverage. PPACA However, the U.S. Departments of Labor, Health and Human Services, and the Treasury have indicated this requirement will not be effective until official guidance is issued after January 1, IRS Notice (IRB ), March 5, D. Beginning with W-2s issued for the 2012 tax year, employers filing 250 or more Forms W-2 are required to report the aggregate cost of employer sponsored group health coverage on the Form W-2. The cost of multiemployer coverage is exempt from this requirement until the calendar year beginning at least six months following the release of IRS guidance on the applicability of the requirement to multiemployer plan coverage. IRS Notice (IRB ), January 23, E. Beginning in 2014, large employers will also be required to report to the Secretary of HHS whether they offer full-time employees (and their dependents) the right to enroll in minimum essential coverage under an eligible employer-sponsored plan, the applicable waiting period, the lowest cost option in each of the enrollment categories under the plan, and the employer s share of the total allowed costs of benefits provided under the 6

9 plan. The employer must also report the number and names of full-time employees receiving coverage. PPACA F. Affordability of coverage rule for large employers contributing to multiemployer plans if the employee s required contribution towards the cost of self-only coverage is less than 9.5% of the wages reported to the multiemployer plan (based on either actual wages or the hourly wage rate under the CBA), then the coverage will be deemed affordable for purposes of the penalty. VI. INCENTIVES FOR SMALL EMPLOYERS A. SMALL BUSINESS TAX CREDITS 1. The PPACA adds a new Section 45R to the Internal Revenue Code, which provides a tax credit for eligible small employers that provide health insurance to their employees. For 2014 and 2015, eligible employers who purchase coverage through a SHOP Exchange can receive a tax credit of up to 50% of their premium contributions. To be eligible for this credit, employers must have 25 or fewer employees, pay employees an average annual wage of less than $50,000, offer all full-time employees coverage and pay at least 50% of the premium. PPACA VII. FINANCING HEALTH REFORM A. ANNUAL FEES AND EXCISE TAXES 1. Beginning in 2012, annual fees will be imposed on the pharmaceutical manufacturing sector. Beginning in 2014, annual fees will also be imposed on the health insurance sector. These fees will be reduced for certain non-profit insurers and voluntary employees beneficiary associations (VEBAs) not established by an employer. 2. Beginning in 2012, health insurers and sponsors of self-insured health funds were also imposed under the PPACA to fund the Patient Centered Outcomes Research Institute, which performs medical research and disseminates information on the clinical effectiveness of its findings. The fee is applicable for each policy or plan year ending on or after Oct. 1, 2012, and before Oct. 1, The fee is $2 ($1 dollar in the case of policy years ending before Oct. 1, 2013) multiplied by the average number of lives covered under the policy or plan. For policy or plan years ending on or after Oct. 1, 2014, the fee is increased based on increases in the projected 7

10 per capita amount of national health expenditures. PPACA 6301; IRC Beginning in 2014, states will also be required to establish a transitional reinsurance program to collect contributions from health insurers and self-insured plans to provide payments to plans in the individual market that cover high risk individuals. Under the statute, the total contributions to be collected by all states must equal $10 billion in 2014, $6 billion in 2015, and $1 billion in HHS will set a national contribution rate each year in an annual notice of benefit and payment parameters. The amount that each entity must pay will be based on the number of covered enrollees of the entity. Transitional reinsurance program contributions will be collected on a quarterly basis beginning January 15, PPACA 1341; 77 FR (March 23, 2012). 4. Beginning January 1, 2018, a 40% excise tax (calculated on the amount above the threshold amount) will be levied on insurance companies and plan administrators for any health coverage plan that is above the threshold of $10,200 for individual coverage and $27,500 for family coverage. This is commonly referred to as the Cadillac Tax. Multiemployer plans are to use the family threshold for determining whether the penalty applies. The threshold amounts exclude stand-alone dental and vision, and include the value of employer contributions to HRAs, HSAs, and FSAs. These threshold amounts will be increased for retired individuals age 55 and older who are not eligible for Medicare and for employees engaged in high-risk professions or employed to install or repair electrical lines. The threshold amounts will also be increased in 2018 based on the growth of the Blue Cross Blue Shield Federal Employee Plan s standard option. The threshold amounts will be further increased by the Consumer Price Index for All Urban Consumers (CP-U) thereafter. PPACA 9001; HCRA Beginning January 1, 2013, the adjusted gross income threshold for claiming medical expenses as itemized deductions is increased from 7.5% to 10%. Individuals age 65 and over will continue to be eligible for the itemized deduction at 7.5% of gross income through PPACA Beginning January 1, 2014, the Medicare tax rate will increase by.9% (from 1.45% to 2.35%) for individuals with high incomes (wages over $200k for single filers and $250k for joint filers. PPACA

11 7. Beginning in 2012, the PPACA also imposes a new Medicare tax on high income individuals unearned income. This tax, which is imposed under new Internal Revenue Code Section 1411, will be 3.8% on investment gains for single individuals who earn $200k or more, and married individuals making $250k or more. HCRA

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