HHS ISSUES ADDITIONAL GUIDANCE ON TRANSITIONAL REINSURANCE PROGRAM

Transcription

1 HUMAN CAPITAL PRACTICE ALERT: HEALTH CARE REFORM BILL Jauary HHS ISSUES ADDITIONAL GUIDANCE ON TRANSITIONAL REINSURANCE PROGRAM Sectio 1341 of the Patiet Protectio ad Affordable Care Act (PPACA) requires that stadards be implemeted eablig states to establish ad maitai a trasitioal reisurace program. The purpose of the program is to help stabilize premiums for coverage i the idividual health isurace market. PPACA provides for three risk-spreadig mechaisms to mitigate the potetial impact of adverse selectio ad to stabilize premiums: a risk corridor, a risk adjustmet program ad the trasitioal reisurace program. Oly the reisurace program is discussed i this Alert, as it is the program of particular iterest to pla sposors of group health plas. O March 23, 2012 the Departmet of Health ad Huma Services (HHS), issued a fial regulatio implemetig the premium stabilizatio rules. However, those regulatios did ot provide the most importat iformatio for employers that sposor group health plas: the amout that will have to be paid. The Willis Alert addressig those earlier regulatios ca be foud here. O December 7, 2012 HHS published proposed regulatios that expad ad revise some of the prior guidace, such as addressig the reisurace amout ad other structural chages to the program to provide uiformity from state to state. The proposed regulatios ca be foud here. BACKGROUND Startig i 2014, due to isurace reform uder PPACA, health coverage will be available to ayoe, regardless of health status, either i the idividual market or through the small group market. This ufettered availability may result i adverse selectio (i.e., the tedecy for high-risk idividuals to buy health isurace ad low-risk idividuals to defer purchase of health isurace) which i tur would result i fewer healthy erollees. Such adverse selectio may ultimately cause premiums to icrease i ay market, but especially i the idividual ad small group markets. I order to stabilize these icreasig premiums, especially i the first three years ( ) of operatio of state isurace exchages, PPACA provides for the implemetatio of a trasitioal reisurace program. Reisurace is basically buyig protectio agaist the possibility that some rare set of circumstaces (such as high claim cost) might produce losses that a isurer is uable to fud o its ow. Thus, the reisurace program uder PPACA is desiged to reduce the ucertaity of isurace risks i the idividual market by makig paymets for high-cost claims. Accordig to the HHS guidace, the reisurace program is desiged to protect agaist

2 isurers potetial perceived eed to raise premiums due to the implemetatio of the 2014 market reform rules, specifically guarateed availability. The reisurace program will be fuded with paymets to a applicable reisurace etity from health isurace issuers ad certai pla admiistrators o behalf of group health plas. Although the regulatios provide for states to establish a reisurace program, eve if ot establishig a health isurace exchage, states are ot required to establish such a program. If a state chooses ot to establish a reisurace program, the HHS will establish it for the state. The program is scheduled to ru for a three-year period begiig Jauary 1, AMOUNT OF RESINSURANCE CONTRIBUTIONS AND REIMBURSEMENTS I order to fud the trasitioal reisurace program, PPACA provides for aggregate cotributios i the amout of $12 billio for pla years begiig i 2014, $8 billio for pla years begiig i 2015 ad $5 billio for pla years begiig i The cotributios cosist of three compoets: a basic cotributio rate, a cotributio to the U.S. Treasury, ad a amout to cover admiistrative costs. It is oted i the guidace that the $5 billio payable to the Treasury is the same amout appropriated for the Early Retiree Reisurace Program (ERRP). Reisurace cotributios are calculated by addig the basic cotributio rate, the U.S Treasury cotributio ad admiistrative costs ad the dividig by the estimated umber of erollees i plas that must make reisurace cotributios. Natioal Per Capita = Basic cotributio rate + U.S. Treasury cotributio + Cotributio Rate Admiistrative cost Estimate of erollees i plas subject to cotributios HHS determies the atioal per capita cotributio rate for a beefit year (defied to be a caledar year). Based o the required 2014 amouts, HHS has estimated the per capita amout as $5.25 a moth, or $63 a year. The per capita cotributio will be applied to all reisurace cotributio erollees who are defied as idividuals covered by a pla for which reisurace cotributios must be made pursuat to the fial regulatios. Sice the regulatios referece idividuals covered by a pla, this meas that reisurace cotributio erollees are employees, spouses ad depedets, ad the fee will be applicable to all of these. HHS is resposible for allocatig reisurace paymets to appropriate isurace issuers i a state. I 2014, isurers will receive a reimbursemet of 80% of the idividual claims that exceed a attachmet poit of $60,000 up to a atioal reisurace cap of $250,000. For example, for a idividual claim of $100,000, the isurer will receive 80% of $40,000 or $32,000 ($100,000 - $60,000 attachmet poit = $40,000 X 80%). Additioally, the proposed regulatios provide that a state may elect to collect additioal reisurace cotributios for admiistrative expeses or reisurace paymets. However, due to the federal preemptio of state laws that relate to a ERISA-covered pla, a state caot collect a additioal reisurace cotributio from a ERISA self-isured pla. 2 Willis North America 1/13

3 AFFECTED PLANS AND EXCEPTIONS Health isurace issuers ad third-party admiistrators (TPAs) o behalf of group health plas, referred to as cotributig etities, are geerally required to make cotributios to the trasitioal reisurace program. The guidace clarifies that the ultimate liability for the reisurace fee rests with the self-isured pla, but that a TPA ca remit the fee o behalf of the pla. Presumably, isurace issuers will pass the fee directly o to the pla sposor of the group health pla by way of premiums. Thus, the pla sposor (geerally the employer) should be prepared to fud this cotributio, regardless of beig fully isured or self-isured. Furthermore, a self-isured pla that is self-admiistered is expected to make the reisurace paymets directly. Neither the statute or the regulatios provide exceptios for govermetal or church plas that are self-isured. PPACA provides that cotributio amouts for the reisurace program are to reflect a isurer s commercial book of busiess for all major medical products. Thus, the statute is beig iterpreted to require reisurace cotributios oly for major medical coverage which the proposed regulatios defie as health coverage which may be subject to reasoable erolled cost sharig, for a broad rage of services ad treatmets icludig diagostic ad prevetive services, as well as medical ad surgical coditios provided i various settigs, icludig ipatiet, outpatiet, ad emergecy room settigs. The proposed regulatios provide that the followig types of plas ad coverage would be excluded from reisurace cotributios. Medicare, Medicaid, CHIP or state high-risk pools, because they are ot part of a isurer s commercial book of busiess; likewise, Medicare Part C or Part D programs are part of a govermetal book of busiess ad excluded from the reisurace cotributio Coverage that is ot issued o a form filed ad approved by a state isurace departmet (expatriate coverage may fall withi this category) Coverage oly for a specified disease or illess ad hospital idemity or other fixed idemity isurace Stad-aloe detal or visio plas Liability isurace, icludig geeral liability ad automobile Workers compesatio Credit-oly isurace Log-term care Health flexible spedig accouts (FSAs) that meet the defiitio of a excepted beefit Employee assistace programs, disease maagemet or welless program as log as the program does ot provide for major medical coverage Stop-loss coverage Health savigs accouts (HSAs) (although reisurace cotributios are required for the high deductible health pla) Health reimbursemet arragemets (HRAs) itegrated with a group health pla (although reisurace cotributios are required for the group health pla) Tribal coverage offered to tribal members, their spouses ad depedets, i their capacity as tribal members ad ot i their capacity as curret or former employees of the tribe or their depedets, as this would ot be a commercial book of busiess Although there is ot a per se exemptio for retiree plas, the proposed regulatios clarify that whe a idividual has both Medicare ad employer-provided coverage, the group health pla will oly be cosidered major medical coverage whe the group health pla is primary to Medicare. So for example, a workig 68-year-old covered uder the employer s group health pla ad erolled i Medicare (with the group health pla as primary) would be couted for purpose of the reisurace cotributio. A 68-year-old retiree who is erolled i the group health pla (with Medicare as primary) would ot be couted for the reisurace cotributio. This is the same applicatio that would be used for a group health pla coverig pre- Medicare retirees, disabled employees where Medicare is ot primary ad COBRA beeficiaries. 3 Willis North America 1/13

4 CALCULATING REINSURANCE CONTRIBUTIONS The reisurace cotributio is applicable for a group health pla based o the average umber of lives (employees ad depedets) covered uder the pla. Although the cotributio is required for isurers ad the admiistrators of self-isured plas, this Alert is oly addressig the calculatio method for a self-isured pla, as isurers are resposible for the cotributio for a fully isured pla. The guidace provides a umber of methods for calculatig the average umber of lives for a self-isured group health pla. To be cosistet, a pla sposor must use the same method for the duratio of a caledar year; however, a differet method may be used from oe caledar year to the ext. These methods are similar to those provided for determiig the Patiet Cetered Outcomes Research Istitute (PCORI) fee (also referred to i previous commuicatios as the Comparative Effectiveess Research fee). Cotributios ca be calculated usig a differet method for the reisurace fee tha for the PCORI fee. Note agai that the PCORI fee is based o a pla year, while the reisurace cotributio is based o a beefit year, defied by HHS as a caledar year. At the same time HHS issued the proposed regulatios, the Iteral Reveue Service (IRS) issued a Trasitioal Reisurace Program FAQ, which provides that health isurace issuers ad a sposor of a self-isured group health pla may treat the reisurace program cotributios as ordiary ad ecessary expeses paid or icurred i carryig o a trade or busiess, subject to ay applicable disallowaces. Furthermore, a footote cotaied i the preamble to the ew proposed regulatios states, [t]he Departmet of Labor has reviewed this proposed rule ad has advised that payig required reisurace cotributios would costitute a permissible expese of the pla for purposes of Title I of [ERISA] because the paymet is required by the pla uder the Affordable Care Act as iterpreted i this proposed rule. Accordigly, it appears that pla sposors may elect to reimburse the cost of the aual fee from the respective pla, as permitted by ERISA ad DOL regulatios ad guidace issued thereuder. If electig to reimburse this cost from the pla, pla sposors should esure that the pla documet properly reflects this provisio. ACTUAL COUNT METHOD The average umber of lives covered uder the pla for the pla year ca be determied by addig the total umber of lives covered for each day of the first ie moths of the caledar year ad dividig that total by the umber of days i those ie moths. EXAMPLE: Employer is the pla sposor of a self-isured health pla. Employer determies the sum of the lives covered for each day of the first ie moths i the applicable caledar year as 2,463,750. The average umber of lives covered uder the pla will be determied by dividig 2,463,750 by 273 days (the umber of days i the first ie moths of a ormal caledar year, i.e., ot cosiderig a leap year): 9,024. SNAPSHOT FACTOR METHOD Add the totals of lives covered o ay date (or more dates if a equal umber of dates are used for each quarter) durig the same correspodig moth i each quarter ad divide that total by the umber of dates o which a cout was made. The umber of lives covered o a date is calculated by addig the umber of participats with self-oly coverage o the date to the product of the umber of participats with coverage other tha self-oly 4 Willis North America 1/13

5 coverage multiplied by 2,35. This coutig method is oly used over the first three quarters of the caledar year. The date or dates for each quarter geerally must be the same, except that the date used for the secod ad third quarters must fall withi the same week of the quarter as the correspodig date used for the first quarter. EXAMPLE: Employer has a self-isured health pla providig coverage for employee, employee plus oe ad family. Employer desigates the first day of each quarter for determiig covered lives. O Jauary 1 there is employee-oly coverage for 600 participats, ad 800 for other tha employee-oly coverage. O April 1 there is employee-oly coverage for 608 lives ad 800 for other tha employee-oly coverage. O July 1 the pla provides employee-oly coverage for 610 lives ad for other tha employee-oly coverage 809 lives. The average umber of lives covered uder the pla for the pla year is 2,493. [((600 + (2.35 X 800) + ((608 + (2.35 x 800) + ((610 + (2.35 x 809) + (( x 809)) divided by three] FORM 5500 METHOD The average umber of lives is determied o the basis of iformatio i the ERISA Form 5500 filigs for the last applicable pla year. The guidelies provide that a self-isured group health pla may rely upo such data, eve though the data may reflect erollmet i a previous beefit year. Plas providig self-oly coverage calculate the umber of lives by addig the umber of Form 5500 at the begiig ad ed of the pla year, divided by two. For plas providig coverage to employees ad depedets, the umber of lives is the sum of the umber of participats of Form 5500 at the begiig ad ed of the pla year. EXAMPLE: Employer has a self-isured health pla with a pla year of August 1, 2012 through July 31, 2013 offerig employeeoly coverage. O Form 5500 the employer reports 4,000 participats o the first day of the pla year ad 4,200 participats o the last day of the pla year. The pla sposor determies the average umber of lives covered by addig 4,000 ad 4, 200 (8,200) divided by two (4,100). EXAMPLE: Employer has a self-isured health pla with a pla year of August 1, 2012 through July 31, 2013 offerig employee, employee plus oe ad family coverage. O Form 5500 the employer reports 4,000 participats o the first day of the pla year ad 4,200 participats o the last day of the pla year. The pla sposor determies the average umber of lives covered by addig 4,000 ad 4,200 (8,200). Procedures for coutig covered lives for group health plas with a self-isured coverage optio ad a isured coverage optio. Whe determiig the umber of covered lives for reisurace cotributios for a group health pla that has isured ad self-isured optios, the pla must use either the Actual Cout Method or the Sapshot Factor Method. MULTIPLE PLANS For the purpose of the reisurace cotributio, a pla sposor has multiple plas whe it maitais two or more group health plas (or a group health pla with both isured ad self-isured compoets) that collectively provide major medical coverage for the same covered lives. These types of multiple plas are aggregated ad treated as a sigle self-isured group health pla whe calculatig ay reisurace cotributio amout. This aggregatio prevets double coutig of lives across multiple plas. There are two exceptios to this aggregatio rule provided i the proposed regulatios. Aggregatio is ot required with respect to a group health pla that oly provides: OR Coverage for excepted beefits, such as stad-aloe detal or stad-aloe visio Prescriptio drug coverage PLAN SPONSOR PLAN DOCUMENT Because the pla sposor is resposible for paymet of the cotributio, it is importat to kow how pla sposor is defied. The proposed regulatios defie pla sposor as the employer i the case of a sigle employer, the employee orgaizatio, the 5 Willis North America 1/13

6 board of trustees for a multiemployer pla, the committee for a multiple employer welfare arragemet (MEWA), the cooperative or associatio for rural elective cooperatives ad the trustee for a pla maitaied by a volutary employees beeficiary associatio (VEBA). Geerally, whe a self-isured pla covers employees of more tha oe related employer, they are deemed to be uder commo cotrol of oe employer ad oe pla sposor. However, the proposed regulatios for the reisurace cotributio do ot cotai rules that would treat related etities as a sigle employer. Thus, i this situatio, the regulatios provide that the pla sposor (ad etity resposible for the cotributio) will be the perso idetified i the terms of the pla documet that govers the pla. I additio to beig amed i the pla documet as the pla sposor, the etity must also coset to the desigatio by o later tha the date by which the cout of covered lives for that beefit year (caledar year) is required to be provided. If a pla sposor is ot desigated i the terms of the pla documet the the pla sposor is each employer which has employees covered uder the pla. Thus, each employer would be resposible for makig ay applicable reisurace cotributio for the employees it has covered uder the pla. This provisio agai emphasizes the importace of a employer esurig its pla is established ad govered by a pla documet (ad that such documet properly desigates the pla sposor). REMITTING REINSURANCE CONTRIBUTIONS I order to simplify the collectio of the reisurace cotributios for isurers ad selfisured group health plas, HHS will be the oly collectig etity ad will collect cotributios o a aual basis for all states. Iitially it was proposed that the states would establish their ow collectios o a quarterly basis. (However, if a state decides to operate its ow reisurace program, the this would be a separate fee ad would ot be collected by HHS.) The guidelie for payig paymets will be as follows: By November 15 of each beefit year (2014, 2015, ad 2016) the cotributig etity submits to HHS a erollmet cout of the average umber of covered lives subject to the reisurace cotributio. HHS will otify the cotributig etity withi 15 days of submissio of the aual erollmet cout or by December 15, whichever is later, of the reisurace cotributio amout to be paid. Cotributios by the cotributig etity are required to be remitted withi 30 days after HHS otificatio of cotributios. CONCLUSION The trasitioal reisurace program is to assist i stabilizig premiums for the idividual ad small group market i It is likely to result i additioal costs for employer-pla sposors. Pla sposors of both fully ad self- isured plas eed to begi to cosider the additioal costs the pla may icur. Also, pla sposors of self-isured plas will eed to work with their TPAs to determie how they ited to admiister the cotributio. 6 Willis North America 1/13

7 KEY CONTACTS U.S. HUMAN CAPITAL PRACTICE OFFICE LOCATIONS NEW ENGLAND Aubur, ME Bagor, ME Bosto, MA Burligto, VT Hartford, CT Machester, NH Portlad, ME Shelto, CT NORTHEAST Buffalo, NY Morristow, NJ Mt. Laurel, NJ New York, NY Norwalk, CT Rador, PA Wilmigto, DE ATLANTIC Baltimore, MD Koxville, TN Memphis, TN Metro DC Nashville, TN Norfolk, VA Resto, VA Richmod, VA Rockville, MD SOUTHEAST Atlata, GA Birmigham, AL Charlotte, NC Gaiesville, FL Greeville, SC Jacksoville, FL Marietta, GA Miami, FL Mobile, AL Orlado, FL Raleigh, NC Savaah, GA Tallahassee, FL Tampa, FL Vero Beach, FL MIDWEST Appleto, WI Chicago, IL Clevelad, OH Columbus, OH Detroit, MI Grad Rapids, MI Milwaukee, WI Mieapolis, MN Molie, IL Pittsburgh, PA Schaumburg, IL SOUTH CENTRAL Amarillo, TX Austi, TX Dallas, TX Dever, CO Housto, TX McAlle, TX Mills, WY New Orleas, LA Oklahoma City, OK Overlad Park, KS Sa Atoio, TX Wichita, KS WESTERN Freso, CA Irvie, CA Las Vegas, NV Los Ageles, CA Phoeix, AZ Portlad, OR Racho/Irvie, CA Sa Diego, CA Sa Fracisco, CA Sa Jose, CA Seattle, WA The iformatio cotaied i this publicatio is ot iteded to represet legal or tax advice ad has bee prepared solely for educatioal purposes. You may wish to cosult your attorey or tax adviser regardig issues raised i this publicatio. 5 Willis North America 12/12