Health in a Handbasket What Employers Need to Know Now

Transcription

1 Health in a Handbasket What Employers Need to Know Now

2 Presented by Steven J. Friedman Littler, New York

3 Agenda Full Speed Ahead: Again? Pay-or-Play: What is the optimal strategy for you? Do you have a Cadillac plan? DOL audits: Are you prepared?

4 An Update: Full Speed Ahead (Again), But...?

5 The Affordable Care Act Patient Protection and Affordable Care Act - signed by President Obama on March 23, 2010, amended by the Health Care and Education Reconciliation Act of 2010

6 The Supreme Court Rules On June 28, 2012, the Supreme Court upheld the ACA virtually in its entirety Some employers may have suspended or postponed compliance decisions awaiting the Court s ruling NOW: Employers and plan sponsors must review and accelerate their compliance efforts and make difficult decisions they may have been putting off in anticipation of the ruling

7 Affordable Care Act Implementation Timeline * * * 2018 Small Business Tax Credits Funding for Small Business Wellness Programs Summaries of Benefits and Coverages FSA Limits Play or Pay Cadillac Tax Adult Dependent Coverage Medical Loss Ratio Rebates Medicare Tax Increase Automatic Enrollment No Lifetime Limits No Part D Deduction 90-Day Max Waiting Period Restrictions on Annual Limits PCORI Fee Individual Mandate No Rescissions Except Fraud Insurance Exchanges No Pre-Existing Conditions for Children Individual Subsidies No OTC Reimbursement from FSA, HSA Community Rating External Review Procedures Guaranteed Issue Full Coverage of Preventive Benefits No Annual Limits Enhanced Wellness incentive/penalty Nondiscrimination in Insured Plans Out-of-Pocket Limits

8 2014: Will you Play-or-Pay?

9 The ACA s Requirements: 2014 Health insurance exchanges go live Virtual marketplaces for eligible individuals and small employers to purchase insurance Individual mandate Tax on most individuals for not obtaining health insurance Individuals with household income up to 400% of federal poverty level may be eligible for federal subsidy Employer Mandate/Play-or-Pay

10 2014: Play-or-Pay Beginning in 2014 Large employers (50 or more full-time equivalent employees) that do not provide affordable and minimum value health coverage to full-time employees pay a penalty, if Any full-time employee receives federal premium assistance

11 Employer Mandate Requirements and Penalties PENALTY = No Health Care Coverage Offered Health Care Coverage Offered That is Not Affordable or Does Not Provide Minimum Value PENALTY = $2,000 * (Total Number of Full-Time Employees 30 Full Time Employees) *Penalty imposed if large employer does not offer full-time employees (and their dependents) an opportunity to enroll in minimum essential coverage and at least one of employer s full-time employees received federal assistance to purchase insurance via an Exchange. The lesser of: (a) $3,000 for each full-time employee receiving federal assistance to purchase health insurance through an Exchange or (b) $2,000 * (Total Number of Full-Time Employees 30 Full-Time Employees) *Penalty imposed if the coverage offered is either (i) unaffordable because the employee s required contribution is more than 9.5% of their W-2 wages; or (ii) the actuarial value of the employer s plan is less than 60%, meaning that the plan pays for less than 60% of the covered health care expenses.

12 The ACA s Other Penalties Any other failure to comply can result in excise tax $100/day with respect to each individual to whom such failure relates Maximum for unintentional failure is the lesser of: 10% of the total spend of the group health plan for preceding year; or $500,000

13 Pay-or-Play: It s Not A Simple Question Will you terminate your health care plan? If not, Who will be eligible for health benefits? Will you change the composition of your workforce? Will you use more part-time employees? ERISA Section 510 Liability? Will you change your benefit plan structure? Will you self-fund? Will you shift cost to employees? Will your plan be affordable and provide minimum value?

14 Play-or-Pay: It s Not a Simple Question Will you terminate your health care plan? If so, Will you increase wages so employees can purchase health insurance on an Exchange? How much will an Exchange plan cost? Will you provide a Defined Contribution instead?

15 Play-or-Pay: Weighing Your Options Play: Maintain current plan if affordable and minimum value and offered to all FTs (and dependents) NO PENALTY Play: Offer to all FTs affordable (9.5%) coverage at maximum allowable cost to employee that provides minimum value plan, but shift cost to employees through higher deductibles/co-pays NO PENALTY May encourage some workers to go to Exchange Will cost sharing limits apply?

16 Play-or-Pay: Weighing Your Options Pay AND Play: Offer coverage to only some FTs PAY $2,000 x all FTs minus 30 Does plan discriminate in favor of highlycompensated employees? Pay AND Play: Offer coverage to all FTs, but premiums unaffordable to some employees who are eligible for federal subsidy or does not provide minimum value PAY $3,000 x FTs who qualify for federal subsidy

17 Play-or-Pay: Weighing Your Options Pay: Terminate plan PAY $2,000 for all FTs minus 30 Excise tax is not deductible Impact on employee relations and ability to attract and retain talent Will absenteeism increase/productivity decrease if employee does not purchase other coverage Pay: Terminate plan and increase taxable wages PAY $2,000 x all FTs who qualify for federal subsidy May be more expensive than status quo

18 What Will Happen? Most companies that offer coverage are not expected to change existing approach in 2014 Towers Watson Survey: 88% of employers surveyed say they plan to offer health care benefits to their active employees for the foreseeable future Analysis in will depend on Importance to workforce Impact of nondiscrimination rules Penalty versus cost of providing coverage Future regulations

19 How to Apply Rules to Employees Not Expected to Work FT IRS released safe harbor for determining fulltime status of variable hour and seasonal employees Variable hour means it cannot be determined that the employee is reasonably expected to work on average at least 30 hours per week Seasonal is determined (for now) on good faith basis

20 New Employees Initial measurement period of three to twelve months from hire date Stability period of at least six months but not shorter than measurement period Administrative period (between measurement and stability periods) permitted, but overall time from hire to offer of coverage limited to 13 months and fraction

21 Ongoing Employees Standard measurement and stability periods (e.g., measurement period of Oct. 15, 2012 to Oct. 14, 2013 and stability period of calendar year) Ongoing and new employees must have same length stability periods (e.g., one year) Different categories of employees can have different periods (CBA/non-CBA; salaried/hourly; employees of different companies or in different States

22 Open Questions Still need regulatory guidance on play-or-pay: Minimum-value Affordability Minimum essential coverage Interplay with Nondiscrimination Rules Health care costs? How will the cost of an Exchange plan compare to employer-sponsored plan? Remember 2018 Cadillac Tax

23 Coverage and Benefits Nondiscrimination Currently applies to self-insured plans only; ACA extends to insured plans Insured rules delayed until at least 2014 Will change (but not eliminate) ability to offer differing coverage, or charge different premiums, to certain categories of workers

24 After 2014: What s Coming?

25 The ACA s Requirements: For 2014 and 2015, states can decide whether to include businesses with 100 or fewer or 50 or fewer employees in their exchange Individual mandate in full effect with penalty increase $325 or 2% of household income over filing limit 2016 Employers with 100 or fewer employees must be able to participate in the exchanges Individual mandate penalty increase $695 or 2% of household income over filing threshold 2017 Employers with over 100 employees may participate in the exchanges if permitted by the states % excise ( Cadillac ) tax on employer-sponsored health benefits over a certain threshold

26 Controlling Health Care Costs Towers Watson survey projects a per employee health care cost of $11,507 in 2013, an increase of 5.3% from 2012 (compared to an expected 5.9% increase this year) Many employers looking at ways to control costs Wellness programs: ACA increases incentives for wellness programs (from 20% to 30% of premiums with possibility of up to 50%) Cost-shifting to employees Changing plan options

27 Wellness Programs If reward or penalty conditioned on health status factor 2014: Amount up to 30% (with possibility of increase up to 50%) of cost of coverage Reasonably designed; at least annual opportunity to comply; reasonable alternative Aggressive programs must pass muster under ADA, HIPAA and GINA

28 Are You Prepared?

29 Wrap Plan Wrap Plan Can Aid Welfare Plan Compliance and Create Efficiencies Put all necessary language in one omnibus document Eliminates need to amend each and every plan document which is subject to ACA Standardize language relating to plan eligibility, service counting, coverage during leaves, etc. File one Form 5500

30 DOL Plan Audits DOL Plan Audit Program is Underway On account of history of no audits, health and welfare plan compliance is often lacking Auditors looking at historic areas of noncompliance in plan documentation Review also encompasses ACA-required provisions

31 Employment-Related Documents Health care-related provisions in employmentrelated documents If coverage is provided under health plan postemployment, this must be provided for in plan documents/insurance documents Otherwise risk that insurer can disclaim coverage Nondiscrimination requirements under insured and self-insured plans Absence of fail-safe language could create significant employer liabilities

32 Questions & Answers

33 THANK YOU