EMPLOYER SHARED RESPONSIBILITY:

Transcription

1 EMPLOYER SHARED RESPONSIBILITY: PLAY OR PAY DISCUSSION GUIDE WHY THE MATH DOESN T WORK TO DROP COVERAGE 1

2

3 EVERYONE IS REQUIRED TO MAINTAIN HEALTH COVERAGE The Affordable Care Act (ACA) is ushering in a new paradigm as it relates to health coverage. As of 2014, each U.S. citizen is to maintain minimum essential health coverage or pay a tax penalty. This is called Individual Shared Responsibility, sometimes referred to as the Individual Mandate. U.S. CITIZENS CAN OBTAIN HEALTH COVERAGE ON THEIR OWN, THROUGH THE GOVERNMENT OR BY WAY OF THEIR EMPLOYER: Individual Government Employer (Private and Public) Private Carrier Public Marketplace Individual Exchange NEW Medicaid/ CHIP Medicare Others Military/Indian Large Employer Size: 50 or more ESR Small Employer Size: Under 50 Private Carrier/ Self-Fund Private Carrier/ Self-Fund Public SHOP Small Business Health Insurance Options Program NEW 1

4 EMPLOYERS PLAY A VITAL ROLE IN THE AFFORDABLE CARE ACT Minimum essential coverage is generally purchased on one s own, provided by the government or provided by an employer. That s where you come in, and why employers play such a vital role. About 60 percent of people who have health coverage today receive it from their employer. And, according to a White House fact sheet, more than 96 percent of companies with at least 50 employees already offer health insurance to their employees. With that kind of volume, it s easy to see why the American economy, and the very success of the Affordable Care Act (ACA), hinges on large employers continuing to do what a majority do now offering health coverage to their employees. Legislators crafting the ACA recognized this as well, incorporating into the law the Employer Shared Responsibility provision. In effect, employers will share in the cost of the nation having access to minimum value, affordable health coverage either directly (play) or through taxes (pay). While the so-called Play or Pay provision doesn t compel employers to offer coverage, it certainly contains incentives to do so. Estimates vary widely on just what the impact of the ACA will have on employer-sponsored coverage. But, let s face it. No one likes paying something for nothing, and with tax penalties, that s exactly what it means. 2

5 EMPLOYER SHARED RESPONSIBILITY Employer Shared Responsibility (ESR) is a provision within the ACA that states applicable large employers, defined as employers with 50 (100 in 2015) or more full-time and full-time equivalent employees, may be penalized if any full-time employee receives a premium tax credit or cost-sharing reduction when purchasing health coverage through the Marketplace. TO AVOID POTENTIAL PENALTIES, APPLICABLE LARGE EMPLOYERS WILL NEED TO: Provide an offer of minimum essential coverage to full-time employees and their dependents (children up to age 26); Offer health coverage that meets the minimum value requirement of 60 percent Offer health coverage that is affordable relative to an employee s annual household income (See information about these key concepts beginning on page 6.) 3

6 THE DECISION TREE BELOW WALKS YOU THROUGH THE QUESTIONS EMPLOYERS NEED TO CONSIDER REGARDING EMPLOYER SHARED RESPONSIBILITY. Am I an applicable large employer? You are if you have 50 (100 in 2015) or more full-time and full-time-equivalent employees. YES NO Not subject to employer shared responsibility requirements Do I offer health coverage to at least 95% (70% in 2015) of full-time employees (and their dependents)? 1 YES NO Does at least one full-time employee receive a premium tax credit/cost-sharing reduction? YES No Coverage Penalty: $2,000 x Total number of full-time employees -30 (80 in 2015). 2 NO No penalty Does plan provide minimum value AND affordable coverage to full-time employees? YES NO Does at least one full-time employee receive a premium tax credit/costsharing reduction? YES Inadequate Coverage Penalty: $3,000 x total full-time employees receiving a premium tax credit/cost sharing reduction. 2 No penalty NO Penalty cannot exceed $2,000 x the total number of full-time employees -30 (80 in 2015). 2 1 While applicable large employers that offer coverage to at least 95% (70% in 2015) of their full-time employees (and their dependents) avoid the No Coverage Penalty, such employers are still subject to the Inadequate Coverage Penalty for full-time employees who receive federally subsidized Marketplace coverage, including those not offered coverage (e.g., the other 5% (30% in 2015)). 2 These are annual potential penalties that accrue monthly and are subject to inflation adjustments. 4

7 KEY CONCEPTS OF EMPLOYER SHARED RESPONSIBILITY Employer Size Calculation: Determining applicable large employer status One of the first things employers need to do is determine if they are an applicable large employer, which is defined as an organization with 50 (100 in 2015) or more full-time and full-time equivalent employees during the prior calendar year. The ACA provides a formula for determining applicable large employer status. (See graphic.) If your business operates with seasonal and part-time employees or is part of a controlled or affiliated service group, you may be unwittingly considered a large employer under the ACA. Full-time Employees Refer to the Wellmark information brief titled, Determining Applicable Large Employer Status for additional details. Full-time Equivalent Employees (Non-full-time hours/120) Employer Size 5

8 Applicable large employers have a shared responsibility to offer minimum essential coverage that meets minimum value and affordability requirements to its full-time employees (and their dependents) or face potential penalties. Offer of coverage An employer must provide full-time employees and their dependents an offer of coverage and an effective opportunity to enroll in the coverage at least once each plan year, or an effective opportunity to decline to enroll if the coverage offered does not provide minimum value or is unaffordable based on the Federal Poverty Line safe harbor. Whether an employee has an effective opportunity is determined based on all the relevant facts and circumstances, including adequacy of notice of the availability of the offer of coverage, the period of time during which acceptance of the offer of coverage may be made and any other conditions on the offer. Relief in the final rules provides that: An effective opportunity to decline is not required (nor its proof) for an offer of coverage that provides minimum value and is either: offered at no cost to the employee; or at a cost, for any calendar month, of no more than the Federal Poverty Line safe harbor calculation. An employee s election of coverage from a prior year that continues for the next plan year, unless the employee affirmatively elects to opt out of the plan, constitutes an offer of coverage. Generally accepted substantiation and recordkeeping requirements apply for demonstrating an offer of coverage was made, including a safe harbor method for electronic media. Minimum essential coverage Minimum essential coverage is defined as coverage under certain governmentsponsored plans; employer-sponsored plans, with respect to any employee; plans in the individual market; grandfathered health plans; and any other health benefits coverage, such as a state health benefits risk pool, as recognized by the Secretary of the Department of Health and Human Services (HHS). Minimum essential coverage does not include coverage consisting of excepted benefits, such as dental-only coverage. Minimum Value Under the ACA, a health plan must offer minimum value, which is defined as satisfying a 60 percent actuarial value test this means that a plan would pay for at least 60 percent of medical expenses on average for a standard population. The IRS and HHS have established four methods employers can use to determine if a plan meets minimum value requirements: minimum value calculator, safe harbor plan designs, actuarial certification and metal level coverage. Refer to the Wellmark information brief titled, Minimum Value for additional details. 6

9 For employers that offer multiple plan options, the affordability test can be performed on the lowest cost, singleonly plan that also meets minimum value. Refer to the Wellmark information brief titled, Affordability for additional details. Affordability The affordability test looks at each employee uniquely, rather than the total population. Coverage is considered affordable if the employee s premium contribution for self-only coverage is less than 9.5 percent of his or her household income. Annual household income is the modified adjusted gross income of the employee and any family members of the household who are required to file a federal income tax return. Because employers likely will not know an employee s household income, there are three optional safe harbors for determining affordability: W-2, Rate of Pay, and Federal Poverty Line. Using the W-2 safe harbor, the lowest cost, self-only premium cannot exceed 9.5 percent of an employee s W-2 wages. Under the Rate of Pay safe harbor, the lowest cost, self-only premium cannot exceed 9.5 percent of the employee s computed monthly rate of pay. With the Federal Poverty Line safe harbor, the employee s lowest cost, self-only premium cannot exceed 9.5 percent of the federal poverty line for a single individual. If it does, the plan is not affordable and the employer has failed its responsibility to offer affordable coverage to that employee. Penalties Applicable large employers that do not offer coverage, or offer coverage that does not meet minimum value or affordability requirements, face two potential penalties: The No Coverage Penalty If an applicable large employer does not offer coverage and one or more full-time employee receives a premium tax credit or cost-sharing reduction for coverage purchased through the Marketplace, a penalty may be assessed. The penalty for not offering coverage is $2,000 per full-time employee within the organization, minus the first 30 (80 in 2015), even if just one employee receives a premium tax credit or cost-sharing reduction. The Inadequate Coverage Penalty If an applicable large employer offers coverage, but it does not meet the minimum value or affordability requirements, the potential penalty will be assessed on the number of full-time employees receiving a premium tax credit or cost-sharing reduction when purchasing coverage through the Marketplace. The penalty for inadequate coverage is $3,000 per full-time employee receiving a premium tax credit or cost sharing reduction, not to exceed the No Coverage penalty. Both penalties are paid annually, however, they accrue monthly for any applicable month that a full-time employee receives a premium tax credit or cost-sharing subsidy, and are subject to inflation adjustments. Refer to the Wellmark information brief titled, Penalties for additional details. 7

10 THE PLAY OR PAY CONTINUUM With every day that goes by, the nation s employers move a step closer to making the decision: Do I play or pay? As employers weigh their options, it is becoming evident that the continuum of play or pay spans a much broader array of choices and implications than ever before. Influencing employer responses are the business considerations of company culture, recruitment, retention, productivity and employee morale. The greater emphasis an employer places on these things, along with the financial health and stability of the company, the closer to play a business leans. Conversely, a diminishing emphasis on these things or a tighter budget moves an employer towards pay. Which option you choose, depends on what is best for your organization. This determination is based on analyzing costs and benefits, plus reviewing salaries and workforce needs. PROMOTE ENGAGEMENT IN HEALTH PLAN THROUGH: Employee wellness programs and incentives Value-based designs Tiered networks KEEP THE PLAN YOU HAVE BUT: Comply with ACA Modify benefits Adjust premium contributions MANAGE EXPENSES THROUGH: Giving up grandfathered status Self-funding or adding stop-loss Consumerdirected health care Defined contribution PROVIDE CHOICES TO EMPLOYEES THROUGH: Multiple benefit options Private exchanges Ancillary benefits MODIFY ELIGIBILITY: Restructure workforce or adjust hours Condition or restrict eligibility Bias family premiums DROP HEALTH BENEFITS AND: Compensate through higher salaries Send employees to public Marketplace 8

11 THE PLAY OR PAY DECISION Health insurance advisers predict that when employers master the new math and consequences of the ACA, most will opt to keep providing coverage. Even so, employer decisions are driven not only by the cost of the premiums but also by the cost of coordinating the coverage. PLAY Avoid Fines Tax Advantages Employee Satisfaction PAY Cost Administration If employers drop coverage, however, they ll be subject to paying the fines. They ll lose the tax write-off that comes with providing insurance, and an employee who doesn t qualify for subsidies could end up paying more because his or her premiums won t be sheltered from taxes. It means workers will expect more money to cover the dropped benefit, and it could very well alienate employees. Even so, some employers assert that the play or pay mandate will raise their costs and force them to make workforce cutbacks. As a result, some employers are considering eliminating health care coverage altogether and paying the penalty on their full-time employees. While abandoning coverage may hold a certain appeal, there are reasons why employers should look carefully at all of their options and calculate the outcome. 9

12 DOES THE MATH WORK TO DROP COVERAGE? CONSIDER THIS EXAMPLE: An employer with 500 employees offers health coverage and contributes an average of $7,000 on behalf of each employee for a total annual cost of $3.5M. After an assumed 35 percent tax break, the employer s net cost for providing benefits is $2.275M. If the employer drops coverage, what could be done with the money? Employer Responses Employer Cost / (Benefit) Employee Benefit Results Baseline $2,275,000 $7,000 $2.275M is net cost to employer after 35% tax benefit on $3.5M A. Employer pockets it Employer keeps the money and does nothing to help employees with the cost of health coverage. B. Employer spends same amount Employer spends same tax-effected amount of $2.275M, giving employees a stipend in the form of a salary enhancement (which is deductible by the employer) to offset the cost of purchasing health coverage on their own. C. Employees receive same amount Employer eliminates certain administrative hassles that come with offering health coverage, but provides each employee the same average annual allotment of $7,000 in the form of a salary enhancement (which is deductible by the employer). ($1,335,000) $0 Q. Why does the employer keep so little? A. Employer pays 35% corporate tax rate, and sets aside $940,000 2 to cover the potential tax penalty. 3 $2,275,000 $2,952 1 Q. Why do employees receive less than half of the original amount? A. The employer sets aside $940,000 2 to cover the potential tax penalty; and with the money left to apportion among the 500 employees, withholds employer FICA tax and employee federal income and FICA taxes from the amount. 3 $4,106,176 1 $7,000 Q. Why does the employer pay so much more to give each employee $7,000 in salary rather than the equivalent amount in health coverage? A. The employer gives each employee $7,000 and grosses up the amount to cover withholdings for employee federal income and FICA taxes, and employer FICA tax. 3 Additionally, the employer sets aside $940,000 2 to cover the potential tax penalty. 1 Example assumes 15% federal income tax withholding and 7.65% FICA tax, and that all wages paid are under the FICA wage base. Example does not take into account state income tax or other withholdings. 2 Penalty amounts are subject to inflation adjustments, and the No Coverage penalty calculation does not take into account the one-year transition relief for 2015 (i.e., $2,000 x the number of full-time employees in excess of 30 (for 2016 and future years) rather than 80 (for 2015)). 3 Note that employees may have access to tax subsidies for coverage purchased through the Marketplace, depending on their income level. CALCULATIONS: Baseline: ($3.5M*0.65) = $2.275M (employer cost); $3.5M/500 = $7,000 (employee benefit) A. Employer pockets it: ($3.5M*0.65) ((500-30)*$2,000) = $1,335,000 B. Employer spends same amount (i.e., employer contributes to employees $1,907,892 for a net expenditure of $2.275M): ($1,907,892*1.0765)* $940,000 = $2.275M; $1,907,892/500 = $3,816; ($3,816*.7735) = $2,952 C. Employees receive same amount: ($3.5M/0.7735*1.0765)*0.65+$940,000 = $4,106,176 This example is based on a simple set of assumed facts and is intended only for illustrative purposes. It is not intended as legal advice or U.S. Federal tax advice (or written advice as that term is used in 31 CFR Part 10 (Circular 230)), or as an opinion on specific facts, and should not be construed as such. It was not intended or written to be used, and cannot be used, for the purpose of avoiding penalties. The results shown above may vary significantly depending on the specific facts and circumstances applicable to each particular employer and employee. For example, if the employer is a nonprofit tax-exempt organization or is subject to a lower effective tax rate, or if an employee s wages for the year otherwise exceed the applicable FICA tax wage base, it could materially change the results. For the application of the tax laws to your situation, please consult the advice of your legal and tax advisors. 10

13 PLAYING MAKES THE MOST CENT$ For employers tempted to drop coverage to avoid the extra hassles and regulatory burden, it s important to understand that a number of new responsibilities still apply and a number of advantages enjoyed today would be forfeited. Most employers have already decided to continue offering coverage to their employees and for good reason. Inherently, employers know that if they were to drop coverage, there are a host of implications. Financial Of course, there are the financial implications: Loss of tax advantages: Employers that eliminate health care coverage will miss out on tax breaks, and so will their employees. As you know, employer contributions for health care coverage are not considered taxable income to the employee and are deductible by the employer. After employers forfeit this tax benefit and set money aside for potential non-deductible tax penalties, the money that can be saved by no longer offering coverage is only a fraction of what is spent today on health benefits. Replacement of employee compensation: Employees may demand additional compensation to cover the cost of health care they must now purchase with their own, after-tax dollars. Loss of efficiency: Employers also understand the incremental costs for loss of efficiency. Good benefits, care management and wellness programs can potentially keep employees from utilizing other time-loss programs (such as disability and workers compensation). No Coverage penalty: Employers who don t offer coverage starting in 2015 will face the harshest of two Employer Shared Responsibility penalties ($2,000 for each full-time employee, minus the first 30 (80 in 2015), if even just one of their full-time employees receives subsidized coverage from the Marketplace. This is $940,000 for a group with 500 full-time employees and is non-tax deductible to the employer. 11

14 Brand The impact to an employer s brand is of no small consequence: Employee recruitment: Employers that opt not to offer health care coverage could be doing long-term damage to their employment brand, making it difficult to attract top talent in the future. Even worse, they could lose current employees to organizations that do provide coverage. Employee retention: The damage to the brand could be even greater for employers that once offered coverage, but elect to eliminate it in favor of paying penalties. It could also tarnish the brand and disrupt business another way; employees who are left to the Marketplaces could feel undervalued or abandoned by their employers. Administrative And, there are the administrative considerations: Mistakes happen: For some, answering the question of what constitutes a full-time employee can be tricky. Employers that believe they won t face penalties for dropping or not offering coverage because they have fewer than 50 (100 in 2015) employees may have incorrectly calculated their numbers. If it happens, the results could be costly. Be certain you know how to count full-time and full-time equivalent employees and your obligations. Refer to the Wellmark brief titled, Determining Full-time Employee Status for additional information. Reporting burdens remain: Employers that don t offer health care coverage will still face federal reporting requirements, in part so the penalty amount can be determined. In addition, employees who are not offered coverage are more likely to go to the Marketplace for coverage. The Marketplace will require a variety of employee data from employers, particularly for employees who may be eligible for subsidized coverage. Employers could also receive a payment demand from the IRS, even if it doesn t actually owe a penalty so employers will need good records to refute such claims. This means employers will have to deal with a significant number of inquiries from employees, the Marketplace, and the IRS resulting in staff time, effort and cost. ADDITIONAL RESOURCES Employer Sales Toolkit on Wellmark.com Download and print copies of the Employer Shared Responsibility (ESR) information briefs Read an online employer guide containing an ESR FAQ on various health care reform (HCR) topics WeKnowReform.com In-depth health care reform information for employers. Access the secure employer section to gain valuable information on health care reform topics. Employee protections: As with most laws, the ACA protects employees from discrimination and retaliation. Employers pay a penalty if an employee receives a tax credit or cost-sharing subsidy through the Marketplace, potentially costing his or her employer significant sums of money. The prospect of this increases for employers who do not offer coverage, since the likelihood of penalty is greater and the penalty amount is steeper. An employee who believes he or she was discriminated or retaliated against by an employer (e.g., disciplined, suspended, demoted or terminated) based on the decision to purchase health coverage through the Marketplace will have a cause of action against the employer and can file a complaint with OSHA. 12

15

16 Wellmark Blue Cross and Blue Shield is an Independent Licensee of the Blue Cross and Blue Shield Association. Blue Cross, Blue Shield and the Cross and Shield symbols, are registered marks of the Blue Cross and Blue Shield Association, an Association of Independent Blue Cross and Blue Shield Plans. M /14 14