RE: Notice Excise Tax on High Cost Employer-Sponsored Health Coverage

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1 Richard Stver, FSA, MAAA Principal and Cnsulting Actuary Knwledge Resurce Center May 15, 2015 Submitted electrnically via Buck Cnsultants, LLC. 500 Plaza Drive Secaucus, NJ Tel Fax CC:PA:LPD:PR (Ntice ) Rm 5203 Internal Revenue Service P.O. Bx 7604 Ben Franklin Statin Washingtn, DC RE: Ntice Excise Tax n High Cst Emplyer-Spnsred Health Cverage Ladies and Gentlemen: Thank yu fr the pprtunity t cmment n Ntice regarding the excise tax n emplyerspnsred health cverage under the Affrdable Care Act. Buck Cnsultants LLC, a Xerx Cmpany, is pleased t submit these cmments in respnse t Ntice cncerning the excise tax impsed by sectin 4980I f the Internal Revenue Cde. Buck is a leading glbal emplyee benefits, actuarial and human resurces cnsulting firm that prvides assistance t emplyers that spnsr health plans fr their emplyees. Mst f ur clients will be materially affected by this excise tax and the issues discussed in the Ntice. A. Definitin f Applicable Cverage (Sectin III f the Ntice) Health Savings Accunts (HSAs) The Ntice states that Cde Sectin 4980I prvides fr health FSAs that the cst f applicable cverage is equal t the sum f salary reductin cntributins plus the amunt determined under the general calculatin rule with respect t any reimbursement under the arrangement in excess f the salary reductin cntributins. Therefre, fr FSAs the statute specifies that bth emplyee salary reductin cntributins and emplyer cntributins are in the cst f applicable cverage. The Ntice further states that fr HSAs and Archer MSAs that the cst f applicable cverage shall be equal t the amunt f emplyer cntributins under the arrangement. While emplyee salary reductin cntributins are treated as emplyer-spnsred cverage fr tax purpses fr bth health FSAs and HSAs, the statutry language makes a distinctin between the tw fr purpses f determining the cst f applicable cverage. Fr health FSAs the statute specifically refers t the amunt f emplyer cntributins under any salary reductin electin, while fr HSAs the statute nly directly refers t the amunt f emplyer cntributins under the arrangement. This distinctin can be supprted by several factrs:

2 HSAs have traditinally nt been treated as health benefits and are nt subject t mst ACA requirements While the Ntice states that the Treasury anticipates that future regulatins will exclude emplyee after-tax HSA cntributins, if an emplyer des nt allw emplyees t make pre-tax cntributins, emplyer cntributins will be subject t the cmparability rules under Cde Sectin 4980G. This will likely result in emplyers reducing r eliminating emplyer cntributins. The inclusin f emplyee salary reductin cntributins t HSAs in the cst f applicable cverage will result in emplyees and emplyers cntributing less t HSAs, subject emplyees t significantly higher ut-f-pcket medical expenses and will have a very negative impact n these prgrams. Fr this reasn, Buck recmmends that emplyee salary reductin cntributin be excluded frm applicable cverage. On-site Medical Clinics Cde Sectin 4980I des nt directly address r include n-site medical clinics in the definitin f applicable cverage. Hwever, the Ntice states that Treasury and IRS anticipate that the frthcming prpsed regulatins will prvide that applicable cverage des nt include n-site medical clinics that ffer nly de minimis medical care t emplyees. The Ntice references the sectin B-2 f the COBRA regulatins which state that the prvisin f health care services at an emplyer s n-site clinic des nt cnstitute a grup health plan if: The health care cnsists primarily f first aid prvided during the emplyee s wrking hurs fr treatment f a health cnditin, illness, r injury that ccurs during thse wrking hurs; The health care is nly available t current emplyees; and Emplyees are nt charged fr the use f the facility. Treasury and IRS are als seeking cmment n the treatment f clinics that meet the COBRA criteria but als prvide additinal services such as: Immunizatins Injectins f antigens Prvisin f aspirin and ther nnprescriptin pain relievers Treatment f injuries caused by accidents at wrk Buck recmmends that n-site clinics prviding the abve services als be treated as ffering nly de minimis medical care and nt treated as applicable cverage. Limited Scpe Dental and Visin Benefits Cde Sectin 4980I excludes frm applicable cverage any cverage under a separate plicy certificate, r cntract f insurance which prvides benefits substantially all f which are fr the treatment f the muth r fr treatment f the eye. The Ntice states that whether cverage is insured r self-insured is nt relevant fr purpses f 4980I and that the Treasury is cnsidering

3 exercising its regulatry authrity t exclude frm applicable cverage self-insured limited scpe dental and visin cverage that qualifies as excepted benefits. Buck supprts this exclusin. Limited Scpe Dental and Visin FSAs and HRAs Similar t the prpsed treatment f self-insured limited scpe dental and visin benefits, we recmmend that limited scpe dental and visin FSAs and HRAs als be excluded frm applicable cverage. Emplyee Assistance Prgrams (EAPs) The Ntice states hat Treasury and IRS are cnsidering excluding frm applicable cverage EAPs that qualify as excepted benefits pursuant t recently issued regulatins. Buck supprts this exclusin. Medicare Advantage and EGWPs The Ntice des nt address whether emplyer-spnsred Medicare Advantage plans r EGWPs are applicable cverage. Since these prgrams are cnsidered Medicare cverage and the majrity f the funding cmes frm the federal gvernment, Buck recmmends that these prgrams nt be included in the definitin f applicable cverage. B. Determinatin f Cst f Applicable Cverage (Sectin IV f the Ntice) Aggregatin by Benefit Package and Permissive Disaggregatin The Ntice discusses a ptential apprach fr determining grups f similarly situated emplyees by aggregating all emplyees cvered by a benefit package. The Ntice discusses requiring aggregatin f all emplyees enrlled in a benefit package acrss an entire cntrlled grup. We recmmend that each emplyer member f a cntrlled grup be given the ptin f aggregating nly its wn emplyees enrlled in a benefit package, even when emplyees acrss a cntrlled grup may be enrlled in same benefit package. This apprach is als cnsistent with the Permissive Disaggregatin that the Ntice states that Treasury and IRS are cnsidering. We als supprt the ptin f permitting emplyers t further disaggregate based n bna fide emplyment-related criteria, and suggest that that be expanded t include members f the cntrlled grup. Permissive Aggregatin within Other-than-self-nly Cverage As the Ntice discusses, Cde Sectin 4980I des nt require that the cst f applicable cverage be determined separately based n the number f individuals enrlled in ther-thanself-nly cverage in additin t the emplyee. The Ntice states that fr that reasn, Treasury and the IRS are cnsidering an apprach that wuld permit an emplyer t treat all emplyees with ther-than self-nly cverage in the same benefit prgram as similarly situated regardless f the number f family members enrlled. Buck supprts this permissive aggregatin rule. It is cnsistent with many emplyers emplyee cntributin strategies and is less likely t disrupt current cverage fr dependents. Actuarial Basis Methd

4 The Ntice asks fr cmments n whether regulatins shuld require accreditatin f individuals making actuarial estimates. Buck recmmends that emplyers be given the ptin f having a determinatin f cst certified by a member f the American Academy f Actuaries, but that this certificatin nt be required. This certificatin shuld prvide a safe harbr fr the emplyer. The Ntice als asks fr cmments n whether it wuld be preferable t specify a list f factrs that must be satisfied t make an actuarial determinatin. Buck recmmends that a list f factrs and safe harbr assumptins be prvided as an alternative t the certificatin discussed abve. The guidance shuld prvide a list f factrs t be cnsidered, and where apprpriate ptinal assumptins that emplyers can use in determining cst. Fr example, under the past cst methd, the GNP deflatr is used t prject csts. A similar safe harbr assumptin that can be used under the actuarial basis methd wuld be helpful t emplyers. Emplyers shuld retain the flexibility t determine csts under ther reasnable actuarial methds and assumptins, but the abve tw ptins shuld be prvided as safe harbrs. HRAs The Ntice anticipates that HRAs will be applicable emplyer-spnsred cverage and discusses several pssible methds fr determining the cst f cverage. Under ne methd, cst wuld be based n the amunts made newly available t a participant each year. Under the secnd methd, cst wuld be determined by adding tgether all claims and administrative expenses attributable t HRAs fr the perid. Under a third methd, emplyers wuld use the actuarial basis methd t determine the cst f HRA cverage. The Ntice mentins that Treasury and IRS are cncerned that making available multiple methds culd increase administrative cmplexity and is cnsidering prviding nly ne methd. Buck disagrees with limiting the number f methds. Currently emplyers use all f these methds t determine cst fr COBRA purpses, and prviding nly ne methd wuld increase cmplexity by requiring many emplyers t use a new methd r t use different methds fr COBRA and the excise tax. Als, depending n the HRA design, ne methd may be mre apprpriate than the ther methd. S Buck recmmends the emplyers have the ptin f methds. Buck als recmmends that HRAs used nly t fund an emplyee s r retiree s cntributins fr emplyer cverage, r fr cverage in a public marketplace r private exchange nt be cnsidered applicable cverage. Similarly, HRAs that can nly be used fr excepted benefits such as limited scpe dental and visin benefits, shuld nt be cnsidered applicable cverage. Treating Pre-65 and Pst-65 Retirees as Similarly Situated Beneficiaries Cde Sectin 4980I states that in the case f applicable emplyer-spnsred cverage which prvides cverage t retired emplyees, the plan may elect t treat a retired emplyee wh has nt attained the age f 65 and a retired emplyee wh has attained the age f 65 as similarly situated beneficiaries. The Ntice des nt address hw this prvisin will be administered and additinal guidance is needed. Because the design f emplyer-spnsred cverage fr pre-65 retirees and Medicare retirees is usually very different, the benefit package apprach discussed in the Ntice wuld nt

5 be apprpriate. Buck recmmends that emplyers be given brad flexibility in determining when pre-65 retirees and retirees eligible fr Medicare can be treated as similarly situated. Clarificatin is als needed n hw the applicable dllar limits will apply. We assume that this prvisin allws the emplyer t cmbine the pre-65 and Medicare benefit prgrams tgether in determining the applicable cst, but that the applicable dllars limits fr qualified retirees and Medicare retirees wuld still apply. C. Applicable Dllar Limit (Sectin V f the Ntice) Emplyees with Bth Self-nly and Other-than-self-nly Applicable Cverage The Ntice discuss situatins where an emplyee culd simultaneusly have bth self-nly cverage and ther-than self-nly cverage. Fr example, an emplyee culd have emplyee nly medical cverage but als a health FSA that cvers the emplyee and the emplyee s family. The Ntice utlines tw pssible appraches fr determining the applicable dllar limit in these situatins. One apprach wuld base the applicable dllar limit n the cverage that accunts fr the majrity f the aggregate cst f the applicable cverage. The secnd apprach wuld apply a cmpsite dllar limit by prrating the dllar limits. Fr administrative ease and simplicity, Buck recmmends that the first apprach be adpted s that the cverage that accunts fr the majrity f the cst be used t determine the applicable dllar limit. Alternatively, the emplyer culd be given the ptin f using either apprach. These cmments reflect the cmbined input frm a number f Buck Cnsultant clleagues. If further infrmatin wuld be helpful, please feel free t cntact the belw. Sincerely, Richard Stver, FSA, MAAA Principal and Cnsulting Actuary Knwledge Resurce Center Buck Cnsultants Leslye Laderman, J.D., LL.M. Principal Knwledge Resurce Center Buck Cnsultants

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