2015 HHRMAC Conference. Affordable Care Act Realities Implications for Human Resources. March 15, 2015 F. Curt Kirschner, Jr.

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1 2015 HHRMAC Conference Affordable Care Act Realities Implications for Human Resources March 15, 2015 F. Curt Kirschner, Jr.

2 Today s Agenda Where We Are With Implementation Play or Pay Employer Penalty Who Is An Employee Which Hours Count Toward Full-Time Status Multiemployer Plans The Cadillac Tax ACA Impact on Bargaining Over Health Benefits Q&A Affordable Care Act Realities Implications for Human Resources 1

3 Affordable Care Act Realities Implementation 2

4 Play or Pay Employer Mandate Two potential penalties: No coverage penalty Insufficient coverage penalty Generally effective January 1, 2015 (one-year delay in enforcement) Delayed until start of year for most fiscal year plans Not required to offer coverage to children in 2015 Interim relief in place for multi-employer plans Delayed until 2016 for employers with FTE Affordable Care Act Realities Play or Pay Employer Penalty 3

5 No Coverage Penalty Large employers that, during a calendar month, do not offer health coverage to substantially all fulltime employees (and their children up to age 26) & have at least one full-time employee receive a Premium Tax Credit owe a non-deductible penalty for that month of $ for every full-time employee (except 30 (80 for plan years beginning in 2015)) ($2,120/year estimated for 2015) Penalty applies separately to each member of a controlled group, but 30 employee exclusion is allocated ratably among controlled group members Affordable Care Act Realities Play or Pay Employer Penalty 4

6 Insufficient Coverage Penalty Large employers that, during a calendar month, offer health coverage that either: is not affordable, does not provide minimum value, or is only offered to substantially all full-time employees & their children up to age 26 owe a nondeductible penalty for that month of $250 for each full-time employee who receives a Premium Tax Credit ($3180/year estimate for 2015) Penalty capped at no coverage penalty (monthly) Applies separately to each member of a controlled group Affordable Care Act Realities Play or Pay Employer Penalty 5

7 Coordination With 90-Day Waiting Period In addition, there is a separate prohibition on waiting periods in excess of 90 days Effective 1/1/2014 Separate penalty for violations Does not apply to substantive eligibility provisions Affordable Care Act Realities Play or Pay Employer Penalty 6

8 Who Is A Large Employer? Employed, on average, 50 or more full-time employees and full-time equivalent employees during prior calendar year Determined on a controlled group basis But, penalties apply separately to each member of a controlled group Affordable Care Act Realities Play or Pay Employer Penalty 7

9 Who Must Be Offered Coverage? Substantially All means 2015: at least 70% of employees Starting in 2016: all but the greater of 5% or 5 employees Applies separately to each controlled group member IRS probably would not pursue foot fault (e.g., 6% not offered) Dependent means an employee s child under age 26 Child includes natural child, adopted child Need not be dependent on the employee Does not include spouse Affordable Care Act Realities Play or Pay Employer Penalty 8

10 Who Is An Employee? Determined based on the common-law right to control test Not the same in all circumstances as under NLRA Designated non-benefited staff who meet ACA eligibility, even if paid a premium, must be offered benefits on at least an annual basis Section 530 relief does not extend to this penalty Affordable Care Act Realities Play or Pay Employer Penalty 9

11 How To Treat Agency Personnel Contingent workers (e.g., contractual or temporary workers) may be your employees The 90-day waiting period may provide a safety zone for employers Coverage offered by staffing agency can be offered on behalf of an employer so long as the fee the employer pays the staffing firm for the employee is higher than the fee the employer would pay the staffing firm for the same employee if that employee did not enroll in health coverage (26 CFR H-4(b)(2)) Based on IRS guidance, employer should be able to protect itself through contractual terms with agency Affordable Care Act Realities Play or Pay Employer Penalty 10

12 Who Is A Full-Time Employee? Monthly average of at least 30 hrs of service/wk or 130 hrs/mo Hour of service = hour for which employee is paid (or entitled to pay) Include paid time off in computing hours of service If reasonably expected to work full-time = full time (but can have 90 day waiting period for newly eligible) If reasonably expected to not work full-time = non-full time (unless things change) Employers must report to IRS as to who are their full-time employees Affordable Care Act Realities Play or Pay Employer Penalty 11

13 Counting Hours Of Service Two principal approaches to determining full-time status Monthly method or Look back method Different method may be used for different employee categories: Different subsidiary as employer Union/non-Union Different CBA Salaried/hourly State of primary employment Affordable Care Act Realities Play or Pay Employer Penalty 12

14 Look Back Method New hires expected to be full-time are classified based on hours worked each month until employed for at least one full standard measurement period All ongoing employees determine full-time status based on standard measurement period & treat as full-time for standard stability period Full-time status during stability period continues during continued employment, including during leave of absence, furlough, strike, etc. Measurement period also continues during these times away from active employment Affordable Care Act Realities Play or Pay Employer Penalty 13

15 Breaks In Service (Termination Or Leave Of Absence) May treat as new employee if no hours of service with any controlled group member: for at least 26 consecutive weeks, or a period of at least 4 consecutive weeks that exceeds the period of prior employment (rule of parity) If treated as continuing employee: measurement & stability periods continue upon return to work, but exclude any special unpaid leave (FMLA, USERRA, jury duty) or credit employee with those hours appears to apply even if return is with different controlled group member Affordable Care Act Realities Play or Pay Employer Penalty 14

16 Variable-Hour Or Seasonal Employee If variable-hour or seasonal, look-back safe harbor can be used to: Determine if full-time during a measurement period of 3-12 months Enroll those who are full-time during an administrative period of up to 90 days Provide coverage to those who are full-time during a measurement period during a related stability period Rules are very complex Useful for limiting number of employees to whom coverage is offered and for reducing potential penalty Affordable Care Act Realities Play or Pay Employer Penalty 15

17 Crediting On-Call Hours Questions exist regarding whether and how to count paid on-call or standby hours AHA submitted comments advocating for same treatment as under FLSA As of Feb 24, 2014, however, IRS position remains that employers are required to use a reasonable method for crediting hours of service Not reasonable to fail to credit on-call hour for which payment is made or due by employer, employee is required to remain on-call on employer s premises, or employee s activities are subject to substantial restrictions that prevent employee from using the time effectively for employee s own purposes Open Question: Partial crediting of hours for reduced rate hours? Safest course: Count all paid on-call hours like other hours paid Affordable Care Act Realities Play or Pay Employer Penalty 16

18 Limiting Hours To Below 30 Not prohibited by current play or pay guidance Some employers are doing this Consider normal discrimination concerns (See Appendix) Potential ERISA Section 510 claim Affordable Care Act Realities Play or Pay Employer Penalty 17

19 ERISA Section 510 Claims It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan (29 U.S.C. 1140) Plaintiff must show 1. Adverse workplace action; and 2. Action was taken for purpose of interfering with attainment of plaintiff s benefits (specific intent) Discriminate might include reclassification to part-time status Affordable Care Act Realities Play or Pay Employer Penalty 18

20 Offer Of Coverage Must be offered at least once a year If coverage terminated due to failure of employee to timely pay premium, deemed offered through end of coverage period If employer offers cash that can be used to purchase individual market policy, employer triggers market reform penalties If employer offers choice of coverage or cash, employer may trigger market reform penalties if arrangement is considered to discriminate based on health factors Affordable Care Act Realities Play or Pay Employer Penalty 19

21 What Is Affordable? Employee cost for employee only coverage in lowest cost option 9.5% of employee s household income Safe harbors: Form W-2, Box 1 wages Issue: unpaid leave may result in unaffordable coverage, particularly if coverage offered during leave Rate of pay 130 x rate of pay for hourly; monthly salary for salaried Issue: pay rate must not be reduced during year Individual federal poverty line ($11,770 for 2015 in the continental U.S.) Wellness program incentives (other than tobacco use) are ignored in determining affordability Affordable Care Act Realities Play or Pay Employer Penalty 20

22 What Is Minimum Value? Plan must pay at least 60% of actuarially projected cost of covered services Determined using a standard population based on the population covered by self-insured group health plans Regulations allow various options to determine minimum value: Online minimum value calculator developed by HHS & IRS Checklist of plan characteristics to compare the plan s covered services with a benchmark Certification by an actuary Affordable Care Act Realities Play or Pay Employer Penalty 21

23 How Does ACA Apply to Multiemployer Plans? Not included in ACA definition of eligible employer-sponsored plan Regulations provide that coverage offered through multiemployer plans is considered coverage offered on behalf of contributing employers Until further guidance is issued, employers are treated as offering coverage to employees on whose behalf they contribute to a multiemployer plan that is affordable and provides minimum value even if the plan does not offer coverage to the employee Affordable Care Act Realities Play or Pay Employer Penalty 22

24 Multiemployer Plans (cont.) Limited employer control over plan design issues and costs Challenge in aligning hours-based approach to full-time employee status and requirements for plan contributions Need to coordinate reporting on who has been offered coverage May be necessary to include terms in future collective bargaining agreements that require multiemployer plan to provide information demonstrating and certifying whether the plan provides minimum value and is affordable Affordable Care Act Realities Play or Pay Employer Penalty 23

25 Paying The Employer Mandate Penalty Based on the reports it receives from employers, individuals, and Exchanges, the IRS will estimate the employer mandate penalty and send notices to employers in 2016 (or later) Employers may contest the estimated penalty After considering employer objections, the IRS will issue an assessment, which is the formal determination of the amount of the penalty owed Employers may pay the assessment or contest it through the normal tax controversy mechanisms The penalty is not reported on a tax return. No statute of limitations applies Affordable Care Act Realities Play or Pay Employer Penalty 24

26 Premium Tax Credit Retaliation No employer shall discharge or in any manner discriminate against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment because the employee (or an individual acting at the request of the employee) has received a premium tax credit or cost sharing subsidy; provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any Federal labor law; testified, assisted, or participated, or is about to testify, assist, or participate, in a proceeding about such violation; or Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any Federal labor law. FLSA 18C Affordable Care Act Realities Play or Pay Employer Penalty 25

27 Retaliation Complaint Procedure OSHA investigates and issues findings and award, if applicable Employee or employer can appeal OSHA s findings to a DOL Administrative Law Judge (ALJ) At the ALJ stage, the parties can engage in full discovery and have a hearing before the ALJ Employee or employer can appeal the ALJ s decision to the Administrative Review Board (ARB), which decides based on the ALJ s record ARB decision can be appealed to a federal circuit court Until decision is final (not until ARB decision or earlier appeal deadlines run), employee can file an action in federal district court (even after ALJ issues decision) Affordable Care Act Realities Play or Pay Employer Penalty 26

28 Retaliation Complaint Legal Framework Burdens of Proof (not McDonnell Douglas framework) Employee must establish that his/her protected activity was a ---contributing factor in an adverse employment action Employer must prove by clear and convincing evidence it would have taken the action in the absence of the protected activity These burdens are more difficult on the employer Employee s remedies Reinstatement and/or compensation (back pay) Compensatory damages Attorney s fees and costs Employer s remedy for frivolous/bad faith claim? Max. $1, Affordable Care Act Realities Play or Pay Employer Penalty 27

29 Protecting Against Retaliation Claims Reporting and anti-retaliation policy Train HR staff, managers and employees on the policy (e.g. an employee asking a manager about whether employer s practices to avoid ACA coverage are permissible may be protected activity) Control access to information from IRS about employees who receive premium tax credit Affordable Care Act Realities Play or Pay Employer Penalty 28

30 Cadillac Tax 40% excise tax that goes into effect in 2018 Applies where cost of applicable coverage exceeds statutory thresholds IRS Notice informs process of developing regulatory guidance, with expectation that an additional notice will be issued before publishing regulations Requests for comments by May 15, 2015 Affordable Care Act Realities The Cadillac Tax 29

31 What Is Included In Applicable Coverage? With respect to any employee, coverage under any group health plan made available to the employee by an employer which is excludable from the employee s gross income under section 106, or would be so excludable if it were employer-provided coverage (within the meaning of such section 106) Health FSAs Archer MSAs HSAs Governmental plans Coverage for on-site medical clinics Retiree coverage Multiemployer plans Coverage only for a specified disease or illness and hospital indemnity or other fixed indemnity insurance), if the payment for the coverage or insurance is excluded from gross income or a deduction under 162(l) is allowed with respect to it Affordable Care Act Realities The Cadillac Tax 30

32 What Is Excluded From Applicable Coverage? Coverage only for accident or disability income insurance; coverage issued as a supplement to liability insurance; liability insurance; workers compensation; automobile medical payment insurance; credit-only insurance; other insurance coverage, as specified in regulations, under which benefits for medical care are secondary or incidental to other insurance benefits Coverage for long-term care Coverage under a separate policy, certificate, or contract of insurance which provides benefits substantially all of which are for treatment of mouth or eye Coverage only for a specified disease or illness and hospital indemnity or other fixed indemnity insurance, if the payment for the coverage or insurance is not excluded from gross income or a deduction is not allowed with respect to it Coverage provided under a plan maintained primarily for members of the military and their families by the government (Implicitly excluded) Affordable Care Act Realities The Cadillac Tax 31

33 IRS Notice and Applicable Coverage IRS anticipates that future proposed regulations will provide the following: Employer contributions to HSAs & Archer MSAs = Included Employee after-tax contributions to HSAs & Archer MSAs = Excluded On-site medical clinics that offer only de minimis medical care to employees = Excluded Affordable Care Act Realities The Cadillac Tax 32

34 IRS Notice and Applicable Coverage (cont.) IRS is considering whether: To propose an approach under which self-insured limited scope dental and vision coverage that qualifies as an excepted benefit pursuant to regulations under 9831 would be excluded; and To propose that Employee Assistance Programs (EAPs) that qualify as an excepted benefit pursuant to regulations under 9831 would be excluded Affordable Care Act Realities The Cadillac Tax 33

35 Statutory Dollar Limit Separate annual dollar limits for self-only ($10,200) v. other-than-self-only coverage ($27,500), with possible adjustments: Health cost adjustment percentage for 2018 Qualified Retirees High Risk Professions Not hospital workers Includes law enforcement officers, out-of-hospital emergency medical care providers, persons engaged in construction, mining, agriculture, forestry, fishing Age and Gender If characteristics in employer s workforce differ from those in national workforce Dollar limits increased by excess of premium cost of Blue Cross/Blue Shield standard benefit option under Federal Employees Health Benefits Plan, if priced for the age/gender of individual s employer, over premium cost for the provision of such coverage, if priced for the age/gender of national workforce Affordable Care Act Realities The Cadillac Tax 34

36 Applying Dollar Limit To Employees With Self- Only and Other-Than-Self-Only Coverage For these employees, IRS is considering whether: Primary coverage determines applicable dollar limit or Composite dollar limit will be used, determined by prorating dollar amount according to ratio Affordable Care Act Realities The Cadillac Tax 35

37 How ACA Altered The Landscape Of Bargaining Over Health Benefits Critically important issue now is more complicated Numerous pre-bargaining decisions need to be made Whether to play or pay What benefits to offer, which employees to cover, and when to cover them What s it going to cost, and who s going to cover it Having a clear bargaining strategy is essential Achieving desirable contract terms Using the strategic opportunities that the ACA creates Avoiding the ACA s pitfalls Affordable Care Act Realities Bargaining Over Health Benefits 36

38 Key Bargaining Objectives Flexibility Compliance with the ACA Sustainable costs Avoiding penalties Affordable Care Act Realities Bargaining Over Health Benefits 37

39 Guidance For Contract Terms Flexibility to make plan design changes mid-term Me-too provisions and waivers But, need to be aware of the McClatchy doctrine Accommodate future changes in the ACA or regulations Consider contract duration Affordable Care Act Realities Bargaining Over Health Benefits 38

40 Guidance For Contract Terms (cont.) Compliance with the ACA Defining full-time employees Setting measurement and stability periods Setting a trigger for changes to ensure compliance Annual offer of coverage to qualified full-time employees Cost control measures Leveraging market plans and essential health benefit benchmarks Cost-sharing and affordability Wellness programs and surcharges/incentives Additional benefits (e.g., dental, vision) Risks of offering free plans on top of medical plan Affordable Care Act Realities Bargaining Over Health Benefits 39

41 Guidance For Contract Terms (cont.) Avoiding penalties by: Offering coverage to substantially all full-time employees Offering sufficient coverage Complying with the 90-day waiting period Ensuring health plans obtained through union collective bargaining agreements avoid the Cadillac Tax Affordable Care Act Realities Bargaining Over Health Benefits 40

42 Sample Contract Language EMPLOYER shall have the right to make changes in the Plans that it deems necessary or appropriate in connection with the ACA or any other federal or state laws, including the need to avoid ACA penalties or taxes, provided that such changes are generally applicable to other EMPLOYER employees covered under the Plans. The changes authorized under this provision shall not be subject to arbitration or bargaining with the Union. Affordable Care Act Realities Bargaining Over Health Benefits 41

43 Sample Contract Language (cont.) In addition to EMPLOYER s right to make changes in the Plans as set forth above, EMPLOYER and the Union anticipate that, during the term of this Agreement, there will be changes to the Plans in response to legislative changes to the ACA, enactment of or changes to state laws governing employee health care coverage, regulations implementing the ACA or such state laws, or other changes to federal or state laws. In the event that such changes materially impact the benefits offered under the Plan and/or EMPLOYER s obligations, or expose EMPLOYER to ACA penalties or taxes, EMPLOYER will meet and confer with the Union upon request, during a 30-day period following notice to the Union, to discuss the impact of the legislative changes or regulations on the Plans; after such 30-day meet and confer period, EMPLOYER shall have the right to implement changes, if any, that it considers necessary or appropriate in connection with such legislative changes or regulations, including changes affecting affordability and minimum value under the ACA and changes designed to avoid ACA penalties or taxes, provided that such changes are consistent with the changes that EMPLOYER implements for other similarly-affected EMPLOYER employees, and such changes shall not be subject to arbitration or bargaining with the Union. Affordable Care Act Realities Bargaining Over Health Benefits 42

44 Additional Compliance Concerns Financial Statements and Audit: Potential penalty is sufficiently large that auditors may ask what internal controls are in place Tracking the hours is complex and tedious Exchange Contacts: May contact employers to confirm offers of coverage or report that employees are receiving premium tax credit Consider how to respond to requests for information from the Exchanges Affordable Care Act Realities Additional Compliance Concerns 43

45 Open Issues Growing Trends Pending Supreme Court Litigation: King v. Burwell (Does not directly affect states with state exchanges, like California) Auto-Enrollment Health Reimbursement Arrangements Narrow Networks Private Exchanges Specialty Drugs Affordable Care Act Realities Open Issues 44

46 Q&A Affordable Care Act Realities Q&A 45

47 APPENDIX Affordable Care Act Realities Appendix 46

48 Nondiscrimination Issues Code 105(h) prohibits discriminating based on eligibility for or benefits in self-insured health plans in favor of 5 highest paid officers, 10% or more shareholders, & employees in top 25% of comp ACA expands Code 105(h) to fully-insured coverage effective when final regs are issued Code 125 prohibits discriminating in cafeteria plan benefits in favor of highly compensated individuals (currently comp of $115,000 or higher) All nondiscrimination rules currently apply on a controlled group basis Affordable Care Act Realities Play or Pay Employer Penalty Appendix 47

49 Determining The Cost Of Applicable Coverage Determination similar to COBRA applicable premium with additional rules: Excludes cost of 4980I tax Separate cost calculation required for self-only v. other-than-self-only coverage Retirees < 65 yrs and > 65 yrs can be similarly situated beneficiaries Health FSA = sum of salary reduction contributions + amount under general calculation rule in excess of salary reduction contributions HSA and Archer MSA = amount of employer contributions under the arrangement, including salary reduction contributions If cost determined on other than monthly basis, cost is allocated to months in a taxable period on such basis as Secretary prescribes Refers to coverage in which employee is enrolled, not coverage offered Affordable Care Act Realities The Cadillac Tax Appendix 48

50 Who Are Similarly Situated Individuals? Potential approach - all employees covered by a particular benefit package provided by the employer, subdividing the group based on mandatory disaggregation rules and further subdividing based on permissive disaggregation rules Aggregate by benefit package (= differences in health plan coverage) Mandatory disaggregation by self-only v. other-than-self-only Permissive aggregation within other-than-self coverage based on number of individuals receiving coverage Permissive disaggregation Affordable Care Act Realities The Cadillac Tax Appendix 49

51 Applicable Cost For Self-insured Plans Actuarial Basis v. Past Cost Method IRS considering requiring a plan to use the valuation method it chooses for a period of 5 years, unless significant difference between periods or employees covered Actuarial potential approach under which estimate is of the actual cost the plan is expected to incur for determination period, not minimum or maximum exposure that plan could have Past Cost - Potential approach under which plans choosing this method could use as the 12-month measurement period ANY 12-month period ending not more than 13 months before the beginning of the current determination period IRS anticipates that future regulations will describe costs that must be taken into account, which could include (1) claims, (2) premiums for stop-loss or reinsurance policies, (3) administrative expenses, and (4) reasonable overhead expenses (such as salary, rent, supplies, and utilities) of the employer Affordable Care Act Realities The Cadillac Tax Appendix 50

52 Determining Cost Of Coverage Under HRAs Assuming future guidance provides HRAs are applicable coverage, cost of coverage will be determined under general 4980I valuation rules Treasury and IRS are considering various methods for determining cost, such as basing cost on amounts made newly available to the participant each year Also considering rules instead of or in addition to potential approach Affordable Care Act Realities The Cadillac Tax Appendix 51

53 Proposed Rule For Determination Period Method for calculating cost of applicable coverage must be elected prior to determination period for which cost is determined Comments also requested regarding feasibility of method for determining cost of applicable coverage using actual costs Affordable Care Act Realities The Cadillac Tax Appendix 52

54 IRS Reporting Obligations Final regulations issued in March of 2014 In January 2016, employers must report to the IRS about compliance with the employer mandate (Code 6056) In January 2016, employers must also report to the IRS about who is covered through self-insured plans (Code 6055) Note: statute indicates employers need social security numbers or taxpayer identification numbers for all covered employees and dependents in order to fully complete these filings. As long as solicitations are properly made, employer is not penalized if it does not secure the SSNs or TINs Information statements will also go to the employees / covered individuals Affordable Care Act Realities The Cadillac Tax Appendix 53

55 IRS Reporting Obligations Name TIN J F M A M J J A S O N D Susan Smith G G F F F B B B B B B B X X X X X X X CODES: A = MV coverage offered to employee only B = MV coverage offered to employee and dependents only C = MV coverage offered to employee and spouse only D = MV coverage offered to employee, spouse, and dependents E = Coverage not offered F = Waiting Period G = Employee not full-time for the month or not employed for the month H = Employer not in business for the month X = $450, which is employee s share of lowest cost monthly premium for self-only employer-sponsored coverage offering MV Affordable Care Act Realities The Cadillac Tax Appendix 54

56 Report Coverage Month By Month Name SSN J F M A M J J A S O N D Jane Smith X X X X X X X X X X X X Billy Smith X X X X Affordable Care Act Realities The Cadillac Tax Appendix 55

57 IRS Form 1095-C Affordable Care Act Realities The Cadillac Tax Appendix 56

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