HEALTH CARE REFORM UPDATE: HOW TO PREPARE FOR 2014 Mary V. Bauman www.millerjohnson.com The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer. 2 Health Care Reform is an “equal opportunity” law It applies to public employers in the same way as private sector employers It generally applies to collectively-bargained employees in the same manner as non-union employees 3 Additional plan changes will be required in the future Waiting Period – Beginning in 2014, health plans may not impose a waiting period of longer than 90 days for newly eligible employees A first of the month after 90 days rule will not comply Coverage must be effective no later than the 91st day If an employee is in the waiting period on the first day of the 2014 plan year, the old waiting period can’t apply if it would exceed 90 days 4 New participant notices must be provided Summary of Benefits and Coverage – The most significant new participant notice required under Health Care Reform is the summary of benefits and coverage (SBC) The purpose of the SBC is to provide certain information in a prescribed format to participants in an employer’s health plan so participants can easily compare the information to other plans they may be eligible for, including the coverages which will be offered on state exchanges 5 New participant notices must be provided The SBC must be updated each year and provided to participants in several situations including upon initial eligibility, at annual open enrollment and upon request 6 New participant notices must be provided Notice of Exchange Availability – Beginning in 2013 employers must provide individuals with a notice regarding the availability of the state exchanges which must be in place by 2014, and the premium credits and cost-sharing subsidies available to low income individuals if they enroll in coverage on the exchange 7 Get ready for new taxes and fees PCORI Fee - For plan years ending on and after October 1, 2012, a new fee will be assessed to finance comparative clinical effectiveness research through the Patient-Centered Outcomes Research Institute (PCORI) For the first plan year the fee is based on the average number of covered lives (employees and dependents) under a health plan multiplied by $1 The multiplier increases to $2 for the next plan year ending on or after October 1, 2013 8 Get ready for new taxes and fees For plan years ending on or after October 1, 2014 the fee will be increased based on national health spending The fee no longer applies for plan years ending after October 1, 2019 Fee is based upon number of covered lives, so both employees and dependents are counted 9 Get ready for new taxes and fees In the case of fully-insured plans, the fee is payable by the insurer. In the case of selffunded plans, the fee is payable by the employer 10 Get ready for new taxes and fees Temporary Reinsurance Program – A new fee is imposed on group health plans to fund reinsurance for insurers in the individual market Fee is imposed during 2014, 2015 and 2016 Goal is to raise $25 billion 11 Get ready for new taxes and fees Fee is front-end loaded – will raise $12 billion in 2014, $8 billion in 2015 and $5 billion in 2016 A state may also impose a supplemental reinsurance fee on fully insured plans, but not self-insured plans IRS proposed regulations issued in December 2012 estimate the fee for 2014 to be $63 per covered person 12 Get ready for new taxes and fees If plan is fully-insured, the fee is paid by the insurer – if the plan is self-insured, the fee is imposed on the plan (but likely will be sent in by the TPA) 13 Health benefit planning for 2014 The centerpiece of the Health Care Reform legislation is the establishment of the state exchanges, the individual mandate and the employer “pay or play” penalty -- all which will take effect in 2014 14 Health benefit planning for 2014 Exchanges - the first component of this new structure will be that each state must maintain an exchange to help individuals and groups shop for health coverage in a more efficient and comprehensive manner A state can form its own exchange or partner with the federal government, or if the state does not prefer either option, the federal government will come in an establish and operate an exchange for the state 15 Health benefit planning for 2014 It appears that most states, including Michigan, will not establish their own exchange and will look to the federal government to establish an exchange for the state 16 Health benefit planning for 2014 Low income individuals (with household income between 100% and 400% of the federal poverty level) will receive assistance These individuals will be provided with premium credits to reduce their cost to obtain coverage on the exchange (capped at a maximum percentage of their household income) 17 Health benefit planning for 2014 Employers will be required to interact with the exchanges in each state where employees reside to verify an employee’s eligibility for employer group health coverage in order to administer the potential financial assistance for low income individuals applying for exchange coverage 18 Health benefit planning for 2014 Individual mandate – individuals must obtain health insurance with minimum essential coverage or pay a penalty Minimum essential coverage is available through public programs, the exchange or an employer plan 19 Health benefit planning for 2014 20 The penalty is the greater of a flat dollar amount or a percentage of household income The flat dollar amount is $95 for 2014, $325 for 2015 and $695 for 2016. For later years, the flat dollar amount will be increased for changes in the cost-of-living The percentage of household income is 1% for 2014, 2% for 2015 and 2.5% for 2016 and later years Health benefit planning for 2014 Employer mandate – large employers will be required to offer health coverage to their employees and their dependents (see below) or pay a “free rider” penalty 21 For this purpose a large employer is an employer with 50 or more full-time employees A full-time employee is an employee who works, on average, 30 or more hours per week Health benefit planning for 2014 22 Part-time employees are counted on an equivalency basis toward the 50 full-time employee threshold The hours of all part-time employees are added together and divided by 120 to arrive at the full-time employee equivalency Health benefit planning for 2014 23 Seasonal employees are counted However, if the only reason an employer is a large employer (50 or more FTEs) is because of seasonal employees and the seasonal employees cause the employer to exceed the threshold for no more than 120 days or four months per year, the seasonal employees will not cause the employer to be a large employer Health benefit planning for 2014 24 The determination of whether an employer is a large employer is made on a calendar year basis (beginning in 2014) looking back at the average number of employees during business days in the preceding calendar year There is a special transition rule for 2014 to allow the snapshot for 2013 to be a sixconsecutive month period Health benefit planning for 2014 25 How does an employer determine if an employee works, on average, 30 or more hours per week? One option is to treat employees who work 130 hours per month as full-time Health benefit planning for 2014 26 IRS proposed regulations offer employers safe harbor options to determine which employees will be considered full-time for purposes of the penalty: If a new hire is reasonably expected to work full-time, the employer will not be subject to the pay or play penalty with respect to that individual if he or she is offered health coverage on or before the conclusion of the employee’s initial three calendar months of employment Health benefit planning for 2014 27 If a new hire is a variable hours employee or seasonal employee, the employee is not required to be offered health coverage unless the employee actually works, on average, at least 30 hours per week during a “measurement period” of between 3 and 12 months Proposed regulations outline the permissible methods of counting hours for purposes of the measurement period for new hires and ongoing employees (see below) Health benefit planning for 2014 Employees should receive credit for all hours they are paid or entitled to be paid for the performance of duties plus each hour for which an employee is paid or entitled to be paid on account of a period of time during which no duties are performed (such as due to vacation, illness, layoff, etc.) 28 Health benefit planning for 2014 29 For hourly employees, employers must credit based on actual hours of service For salaried employees, employers are permitted to calculate the number of hours of service based on actual hours or based on one of two equivalency methods (8 hours for each day the employee would be credited with at least one hour of service or 40 hours for each week the employee would be credited with at least one hour of service) Health benefit planning for 2014 There are special rules to credit hours while on an unpaid leave due to FMLA, USERRA or jury duty 30 Health benefit planning for 2014 If a variable hours employee or seasonal employee works the required number of hours during the measurement period, the worker must be treated as full-time during a subsequent “stability period” which must be a period of at least 6 months and no shorter than the initial measurement period 31 Health benefit planning for 2014 32 If a variable hours employee or seasonal employee does not satisfy the full-time requirement during the measurement period, his or her stability period may not be more than one month longer than the initial measurement period During the stability period, the employer will not be subject to the pay or play penalty with respect to such a variable hours employee or seasonal employee if he or she is not provided with health coverage, even if the individual works, on average, at least 30 or more hours per week Health benefit planning for 2014 33 An employee is a variable hours employee if, as of his or her hire date, it can’t be determined whether the employee is reasonably expected to work, on average, at least 30 hours per week For 2014 only, a variable hours employee also includes an employee whose employment is expected to be of limited duration Health benefit planning for 2014 34 The guidance does not include a definition of seasonal employee for this purpose but does allow employers to use a reasonable good faith interpretation which would appear to include retail workers employed during holiday seasons, agricultural workers and ski instructors Proposed regulations indicate the IRS is considering a specific time limit, such as not more than 6 months per year to qualify as a seasonal employee Health benefit planning for 2014 35 Example: Employer adopts a 12-month measurement period for newly-hired variable hours employees Variable hours employee A is hired on May 9 of year 1 and works, on average, at least 30 hours per week during his initial measurement period Health benefit planning for 2014 36 Variable hours employee A must be treated as a full-time employee for the subsequent stability period (which must be for a period of at least 12 months) regardless of whether he works less than full-time during the stability period Variable hours employee B is hired on May 9 of year 1 and does not work, on average, at least 30 hours per week during her initial measurement period Health benefit planning for 2014 37 Variable hours employee B is not required to be treated as full-time for the subsequent stability period (which may not be longer than 13 months after the month in which she was hired) even if she works on a full-time basis during the stability period Health benefit planning for 2014 38 Employers can also apply a similar measurement period/stability period test for ongoing employees If an ongoing employee doesn’t satisfy the “on average, at least 30 hours per week” test for a measurement period, the employer will not be subject to a penalty if it does not offer the employee health coverage for the subsequent stability period (which can’t be longer than the measurement period) Health benefit planning for 2014 The employer may adopt a “administrative period” of up to 90 days in between the measurement period and the stability period under the safe harbor for ongoing employees The purpose of the administrative period is to give employers time to determine when ongoing employees are eligible for coverage and to notify and enroll employees 39 Health benefit planning for 2014 Example: The employer’s plan operates on a July 1 – June 30 plan year The employer adopts a 12-month measurement period beginning on May 1 of year one and ending on April 30 of year two 40 Health benefit planning for 2014 Instead of immediately beginning the stability period on May 1 of year two, the employer adopts an administrative period (May and June) and begins the 12-month stability period on July 1 of year two There is a similar, shorter administrative period available with respect to newlyhired variable hours employees and seasonal employees 41 Health benefit planning for 2014 Example: the employer’s plan operates on a January 1 - December 31 plan year The employer adopts a 12-month measurement period beginning on November 1 of year one and ending on October 31 of year two 42 Health benefit planning for 2014 Instead of immediately beginning the stability period on November 1 of year two, the employer adopts an administrative period (November and December) and begins the 12-month stability period on January 1 of year three 43 Health benefit planning for 2014 Proposed regulations published on January 2, 2013 provide two key transition rules: Special measurement period for 2013 44 The measurement period and stability period rules for ongoing employees create time constraints for employers who want to use a 12month stability period for 2014 (because the measurement period must also then be 12 months), particularly for employer health plans operating on a calendar year basis (because the 12-month measurement period must begin by January 1, 2014) Health benefit planning for 2014 45 Consequently, the IRS has introduced a special transition rule for 12 month stability periods beginning in 2014 Employers may adopt a measurement period shorter than 12 months as long as certain requirements are satisfied: First, the measurement period must be at least six months long Second, it must begin no later than July 1, 2013 and end no earlier than 90 days before the first day of the 2014 plan year Health benefit planning for 2014 Delay in penalty effective date for non-calendar year plans The pay or play penalty takes effect on January 1, 2014 The proposed regulations provide a delayed effective date for employers with non-calendar year plans that are in effect on December 27, 2012 if certain requirements are met 46 Health benefit planning for 2014 If the employer does not offer a health plan and at least one full-time employee enrolls in health coverage through the exchange and becomes eligible for the premium credit, the employer must pay a penalty of $2,000 per full-time employee per year The first 30 full-time employees are disregarded The penalty is determined and assessed on a monthly pro rata basis 47 Health benefit planning for 2014 48 The penalty will not apply as long as the employer offers coverage to at least 95% of its full-time employees or if greater, all but 5 of its full-time employees For 2014, the penalty is avoided if the employer offers health coverage to its full-time employees For 2015 and later, the employer must also offer health coverage to dependent children to age 26 to avoid the penalty Health benefit planning for 2014 If the employer does offer health coverage but has at least one full-time employee who is enrolled in health coverage through the exchange and receives the premium credit, the employer is subject to a penalty of $3,000 per individual receiving the credit (or $2,000 per full-time employee disregarding the first 30, if less) 49 Low income employees who are eligible for employer health coverage can only qualify for the premium credit if the employer’s health coverage doesn’t provide minimum value or isn’t affordable Health benefit planning for 2014 The employer’s plan doesn’t provide minimum value if it doesn’t cover at least 60% of the total allowed benefits under the plan Focus is on deductible and other out-ofpocket costs Employer HSA and HRA contributions for the current year can be included in determining minimum value 50 Health benefit planning for 2014 51 The employer’s plan isn’t affordable if the employee’s required premium exceeds 9.5% of the employee’s household income The IRS has provided 3 safe harbors where the employer’s plan will be considered affordable for purposes of avoiding the $3,000 penalty for a year W-2 Rate of pay Federal poverty line Considerations in “playing” or “paying” 52 Considerations in "paying” or “playing” Should an employer consider offering health coverage to 100% of its employees working 30 or more hours a week or a lesser percentage (as long as it is at least 95%)? Should an employer offer “affordable” health coverage to 100% of its full-time employees or should it consider making full-time coverage affordable to less than all of its full-time employees? 53 Considerations in “paying” or “playing” Should an employer consider leasing employees or converting employees to independent contractors? Should an employer reduce the hours of its employees to prevent them from qualifying as “full-time”? Risk of ERISA Section 510 violation 54 Considerations in “paying” or “playing” Can an employer address the pay or play penalty by offering a lower cost medical option that still satisfies the minimum value test? Can an employer offer certain medical options and/or more favorable employee contribution rates only to employees previously classified as full-time? 55 Mary V. Bauman Phone: 616.831.1704 [email protected] Calder Plaza Building 250 Monroe Ave. NW, Suite 800 Grand Rapids, MI 49503-2250 56 Radisson Plaza Building 100 W Michigan Ave, Suite 200 Kalamazoo, MI 49007-3960 www.millerjohnson.com
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