The “Discussion Draft” released June 22, 2017 by the Senate Budget Committee carries the House Bill number (H.R. 1628) of the American Health Care Act, and kills taxes like the House bill, but there are major differences, too.  At 142 pages, the Discussion Draft is less than one-sixth the heft of the ACA but it’s a brutal read.  Here are a few of the highlights that can be explained simply in this format, as we prepare for a likely vote-a-rama sometime before July 4.

It’s been re-named the “Better Care Reconciliation Act of 2017.” There’s a message in that moniker.  No Senate Republican will consider this the best they can do.  The hope is that 50 will consider it better than the status quo and therefore good enough for government work.

The premium tax credit subsidies for individual policies purchased through an ACA Exchange survive, though trimmed a bit. The household income eligibility limit drops from 400% to 350% of the federal poverty level.  If excess subsidies are paid, the feds will be allowed to recover the full amount of the excess payments and can add a 25% (up from 20%) penalty for materially incorrect credit applications. Also, the credits will be based on the premium for a “median cost benchmark plan” rather than the second lowest cost silver plan, and the new benchmark plan can have an actuarial value as low as 58%.  Similarly, it may become harder to qualify for the premium subsidy based on the high premium or low value of an employer coverage offer based on how Code § 36B affordability and value are redefined.

BCRA expressly funds ACA § 1402 cost-sharing reductions through 2019 but repeals the program at the end of that year.

Community rating survives but states may elect an age ratio as high as 5 to 1 beginning in 2020. Also starting in 2020, states may take control of medical loss ratio and rebate rules.

The small employer tax credits under Code § 45R disappear after 2019.

The individual and employer mandate taxes stay on the books but the rates and amounts are set at ZERO after 2015. This permits the IRS to assess and collect 2015 taxes.

These taxes are eliminated, with these conditions:

  • The Cadillac plan tax of Code § 4980I disappears from 2019 through 2025 but reappears in 2026;
  • The $2,500 annual FSA contribution limit ends this year;
  • The ACA § 9008 prescription drug tax also expires this year, along with the medical device tax in Code § 4191, the tanning tax of Code Chapter 49 and the health insurance tax of ACA § 9010;
  • The net investment tax is repealed retroactive to January 1, 2017;
  • The Medicare tax of Code § 3101 is cut back beginning in 2023.

HSA contribution limits will match out-of-pocket plan maximums and both spouses will be allowed to make HSA catch-up contributions.

Beginning one year after enactment, BCRA also creates a new legal entity – the fully-insured, single sponsor, multi-employer/member “Small Business Health Plan,” regulation of which is primarily federal, with broad ERISA pre-emption of state regulation. A federally-registered SBHP may issue coverage across state lines with just limited exposure to regulation by its “home” state.  However, the approved plan must forbid participating employers to fund individual market coverage for otherwise eligible employees based on the health status of those employees.

You have just read a very high-level summary of about 40% of the text of this Discussion Draft. The remaining 60% proposes significant changes to Medicaid, DSH payments and state health care program funding and administration.  Those are so complex that we’ll await an actual bill to review.

Lots of wrecks happen because drivers, staring at what’s directly in front of them, are unaware of dangers coming from other directions. This is an ACA blog, so right now we’re staring at the ACA changes being proposed by the Senate majority, but we want you to remain aware that collateral developments could spell trouble for your group health plan.  Here are two.

On June 16, 2017, the three ACA enforcement agencies (DOL, HHS, IRS) issed new FAQ guidance about non-quantitative treatment limintations (NQTL) and assoiciated disclosure obligations, including a draft form to be used to request such disclosures from employer-sponsored group health plans.

Four federal statutes work together to forbid such plans to impose financial requirements and treatment limitations for mental health and substance use disorder (MH/SUD) benefits exceeding the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits, and to force such plans to make related disclosures so that plan participants, and their authorized representatives, can assess compliance. NQTL examples include “medical necessity criteria, fail-first policies, formulary design, or the plan’s method for determining usual, customary, or reasonable charges.”  Often, out-of-network providers make related disclosure requests as their patients’ authorized representatives.

This new guidance also clarifies that “if a group health plan or a health insurance issuer provides coverage for eating disorder benefits,” those are “mental health benefits” fully subject to parity and disclosure standards.

“Boom!” While you were focused on mental health parity rules, the U.S. District Court for the Eastern District of Texas applied the Americans with Disabilities Act (ADA) to an exclusion of coverage for Applied Behavior Analysis Treatment for autism spectrum disorder. See Whitley v. Dr Pepper Snapple Group, Inc., E.D. Texas No. 4:16-cv-00362, Memorandum Opinion and Order (Doc. 4) entered May 4, 2017.  The claimant, mother of a child needing that treatment, claimed that the employer amended its plan to exclude that treatment after and because she sought coverage.  Denying the employer’s summary judgment motion, the Court wrote:

Plaintiff alleges Dr. Pepper changed the 2016 Summary Plan Description in response to and in retaliation for her inquiries regarding whether the Plan covered ABA Treatment. Dr. Pepper responds that the 2016 Summary Plan Description “clarification” did not single out Plaintiff or her son because it applied to all participants. However, Plaintiff alleges that Dr. Pepper modified the 2016 Summary Plan Description to single out and exclude coverage for a particular disability after becoming aware that Plaintiff’s son suffered from that disability. Plaintiff has sufficiently established that the modification and denial of fringe health insurance benefits were an adverse employment action. Plaintiff has made a prima facie showing of discrimination.

The employer contended that ABA Treatment had never been covered and that the 2016 amendment just clarified that lack of coverage. Viewed in the light most favorable to the claimant, said the Court, the evidence supported her claim that the plan was changed to drop coverage after and because she sought coverage, in violation of the ADA.

So, we’ll stare along with you at the ACA changes made in the Senate bill to be released today, but keep your head on a swivel because there are dangers in every direction.

Maxwell Smart, aka “Agent 86” in the 1960’s TV series Get Smart, claimed to have survived “fiendish” water torture – 300 gallons at the rate of one drop a minute.  When disbelieved, he asked, “Would you believe a quart?”  The IRS has a similar credibility problem.  It has warned ambiguously of impending employer mandate tax assessments for so long that many employers have ceased to take the Service seriously.

You have read here prior, sketchy, IRS guidance about when and how it will notify ALE Members of potential employer mandate tax assessments.  That guidance was updated April 20, thusly.

Click this link, then scroll down to Q. 55, where you will read this:

  1. How will an employer that filed Form 1094-C, Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns and Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, know that it owes an employer shared responsibility payment?

The IRS expects to adopt procedures that ensure ALEs receive certification that one or more full-time employees have received a premium tax credit. The determination of whether an employer may be liable for an employer shared responsibility payment and the amount of the potential payment will be based on information reported to the IRS on Forms 1094-C and 1095-C and information about full-time employees of the ALE that received the premium tax credit. The IRS will contact ALEs that filed Forms 1094-C and 1095-C by letter to inform them of their potential liability, if any. These letters will provide ALEs an opportunity to respond to the IRS before any liability is assessed or notice and demand for payment is made. (These letters are separate from the letters that the IRS may send to employers that appear to be ALEs but have not satisfied the requirement to file Forms 1094-C and 1095-C.)

The contact for a given calendar year will not occur until after both the due date, including extensions, for employees to file income tax returns for that year and the due date, including extensions plus a reasonable time for corrections based on errors identified by the IRS during processing, for ALEs to file Forms 1094-C and 1095-C.

If an employer is part of an aggregated ALE group, the process and rules described above and elsewhere in Making an Employer Shared Responsibility Payment apply separately for each ALE member in the aggregated ALE group.

  1. When does the IRS expect to begin notifying employers that filed Forms 1094-C and 1095-C of potential employer shared responsibility payments?

The IRS expects that the letters informing ALEs that filed Forms 1094-C and 1095-C of their potential liability for an employer shared responsibility payment for the 2015 calendar year (with reporting in 2016) will be issued in 2017.

The IRS expects it will begin issuing letters informing ALEs that filed Forms 1094-C and 1095-C of their potential liability for an employer shared responsibility payment, if any, in the latter part of each calendar year in which reporting was due (for example, in late 2018 for reporting in 2018 for coverage in 2017).

  1. Does the IRS expect to publish more information about the employer shared responsibility payment procedures?

Yes. The IRS expects to publish guidance of general applicability describing the employer shared responsibility payment procedures in the Internal Revenue Bulletin before sending any letters to ALEs regarding the 2015 calendar year. In addition, the IRS expects to supplement that guidance in several different ways, widely distributing the information to ensure that ALEs are properly informed of when and how the IRS will be contacting them.

Our educated guess is that ALE Members are unlikely to receive the referenced IRS letters for 2015 taxes before September 1, 2017.  Here’s why.

“In 2017” literally means at any time, up to and including the last day of the year. Since the IRS must assess such taxes within three years of their accrual, it could hardly wait any longer to assess employer mandate taxes that accrued in January 2015. So, this tells us that IRS may delay as long as possible.

The Internal Revenue Bulletin is published online, normally each Monday.  Through May 22, 2017, there has been no employer mandate tax assessment guidance.  Though the Bulletin expressly states that its guidance applies retroactively, FAQ 57 says that ALE Members will be given a significant lead time to prepare for receipt of these pre-assessment “contact” letters.  First, the Bulletin will announce the procedures, then the IRS will issue supplemental guidance through other channels – perhaps including more FAQ guidance updates.  “Contact” letters mailed as late as possible, in December 2017, would seem to break this promise.  So, we expect to see something in the Bulletin by July or August, then supplemental guidance in August or September, then the promised contact letters going in the mail in September or October 2017.

 

 

In the wee hours of May 5, 2017, a state governor awoke, startled.  Late on May 4, he or she had been briefed on the Patient and State Stability Fund and the Federal Invisible Risk Sharing Program described in § 132 of the American Health Care Act.    The reptilian brain was working, as always, in the background until it brought the body bolt upright in bed.  Our governor mumbled, “Billions would flow annually to states and insurers to fix the problems that Washington couldn’t fix.  The governor who succeeds will be the next President.”

Our hypothetical governor wasn’t dreaming.  If the AHCA becomes law, beginning in 2018, over $15B annually will be spent on this experiment.  Most of that money will fund state waiver programs that will be auto-approved, from 2018 through 2026, unless affirmatively rejected by CMS within 60 days of filing.  See AHCA § 132, adding to the Social Security Act new § 2203.

Of course, strings will be attached.  Applications for 2018 funding must be submitted within 45 days of AHCA enactment, in a form and manner yet to be prescribed by CMS.  Each application must certify, “that the State will make, from non-Federal Funds, expenditures for such purposes in an amount that is not less than the State percentage required for the year under section 2204(e)(1).” And, CMS will have to decide what to do if different state officials submit competing state plans, because the statute does not address that issue.  If no 2018 plan is received, or if the state plan is rejected, then CMS will coordinate a Default Federal Safeguard program with the state’s insurance commissioner.

This isn’t Medicaid expansion by another name.  The use of funds permitted by new § 2202 is broader, including assistance to high risk individuals, individual and small group market stabilization, facilitating access to preventive services, and payments directly to providers.  Plainly, the AHCA seeks to encourage local innovation.

Somewhere, perhaps soon, some governor will study this with staff, come up with something others consider crazy, and repeat these words famously spoken by Dr. Frederick Fonkensteen – “IT . . . COULD . . . WORK!”

____________

*See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)

 

And if you are an ACA “Applicable Large Employer” (ALE), it was.

The American Health Care Act, H.R. 1628, with last minute amendments noted in H. Rep. 115-109, passed the House of Representatives on Thursday afternoon, May 4.  Here is a very brief summary of the 131 pages of combined text, focused on changes for Applicable Large Employers.

The employer mandate tax isn’t repealed, but AHCA § 206 reduces the tax to $0 for 2016 and beyond.  This leaves the IRS free to assess and collect 2015 employer mandate taxes from Applicable Large Employers, so don’t ignore notices you may receive soon.  But if the employer mandate goes away, so do severe complications for collective bargaining and employee leasing arrangements.

AHCA § 207 suspends the Cadillac Plan tax until 2025, by which time we’ll all have Cadillacs, very probably.

Employer coverage reporting requirements and associated penalties are untouched by the AHCA.  If you like filing your Forms 1095-C, you can keep filing your Forms 1095-C … or even if you don’t.

While the ACA’s anti-retaliation provision (29 U.S.C. § 218c) survives, its danger should subside, practically speaking.  Employee subsidies to buy Exchange insurance present the biggest employer retaliation exposure, it seems to us, and AHCA § 203 ends those subsidies after 2019.  AHCA § 205 sets the individual mandate tax to $0 after 2015, which should reduce the pressure on low wage employees to seek Exchange coverage and related subsidies in 2018 and 2019.

Of course, none of this matters unless the Senate goes along.  There must be a parliamentary ruling that the AHCA may be considered under budget reconciliation rules, so that only 51 votes are needed.  Then, with whatever changes are made, it must find at least 50 votes, plus the Vice President.  Senate changes would require House approval thereafter.  We’re still in Act II.  It’s still messy, but it’s moving.

Most EEOC retaliation charges are dismissed if the supporting evidence is flimsy.  So why should employers expect ACA retaliation charges to be more costly?  Here’s why:  Gallas v. The Medical Center of Aurora, DOL Administrative Review Board No. 15-076 (Slip Op. April 28, 2017).

Long story short, Ms. Gallas, a registered nurse, was fired from her job as a psychiatric evaluator.  She attributed her discharge to her refusal to perform those functions using telemedicine tools provided by her employer.  In her view, psychiatric evaluation, other than face-to-face, provided substandard care, in violation of the Emergency Medical Treatment and Labor Act (EMTALA), the Health Insurance Portability and Accountability Act (HIPAA), state laws, and ethics rules.  Her employer carefully considered her contentions and rejected each one after investigation, but she persisted.  One day, Ms. Gallas refused to perform a remote evaluation.  Since no other evaluator was available, she was allowed to perform it face-to-face.  She was fired the next day.

The Administrative Law Judge assigned to her ACA claim dismissed it, since Ms. Gallas “failed to identify any specific provisions of the ACA which she reasonably believed the Respondent violated.”  That requirement seems to appear on the face of the statute, 29 U.S.C. § 218c(a), which reads, in relevant part:

No employer shall discharge or in any manner discriminate against any employee … because the employee … has—

(1) […];

(2) […];

(3) […];

(4) […]; or

(5) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this title (or amendment), or any order, rule, regulation, standard, or ban under this title  (or amendment).

(Emphasis ours.)  However, under the former Administration, DOL adopted rules and issued decisions that relaxed that standard markedly.  So, according to the Board, a claimant need not allege any ACA violation.  She “need only allege activity or disclosures ‘related’ to ACA’s subject matter.”  Though HIPAA and EMTALA are separate laws, they address some of the same health care problems as the ACA, so employee objections to perceived HIPAA or EMTALA violations will substitute, for this purpose, for the ACA’s requirement that the employee objected to what she reasonably believed to be an ACA violation.

Effectively, this standard blocks dismissal of such ACA retaliation claims unless the employer can show that the employee’s objection was not reasonably related to any reasonably perceived violation of any federal or state law relating to health care or health care financing. If the EEOC took the same view of the anti-retaliation statutes it administers, employers would be required to prove that employee complaints bore no reasonable relationship to any federal or state law or rule requiring fair employment practices.  Whether intended or not, a principal consequence of this approach is to enhance the settlement value of even the flimsiest retaliation claims.

Watching from afar the Scouts attempting to earn their orienteering merit badges, we could see it on the boys’ faces.  They were lost; they were scared.  They should have reached their destination an hour ago.  Soon, these woods would be dark.   The compass holder, the map marker and the step counter resumed their running argument. We wondered whether to intervene.  Then, the class clown smiled . . . and pointed . . . at a rusted, single-wide trailer they had seen before, very near their departure point.  In five hours, they had come full circle.  They had done a lot wrong and were glad just to know how to get back to our campfire. Success could wait.

And so it is with ACA repeal.  A better-planned, better-executed effort may be mounted, but probably not soon.  Between now and then, 2015 employer mandate taxes will be assessed and collected, and perhaps 2016 taxes, too.  OSHA will investigate the retaliation complaints of employees discharged after triggering those tax assessments by seeking ACA Marketplace subsidies.  Form 1094-C / Form 1095-C reporting penalties will be imposed.  Group health plans will be audited for ACA compliance.  Temp staffing and employee leasing arrangements will be disrupted by those developments.  Consequently, we now return you to our regularly scheduled program.  If ACA compliance has been sidelined or forgotten in your organization, now would be a good time to tune-in.

Here are the highlights we took (quickly) from this afternoon’s Congressional Budget Office Cost Estimate for the American Health Care Act.

The AHCA “would reduce federal deficits by $337 billion over the 2017-2026 period.”

In 2018, “14 million more people would be uninsured under the [AHCA] than under current law. Most of that increase would stem from repealing the penalties associated with the individual mandate.”  Mostly due to reduced Medicaid rolls, that number would rise to 21 million by 2020 and then to 24 million by 2025.

“[T]he [individual health insurance] market would probably be stable in most areas under either current law or the [new] legislation.”

“Even though the new tax credits would be structured differently from the current subsidies and would generally be less generous for those receiving subsidies under current law, the other changes would, in the agencies’ view, lower average premiums enough to attract a sufficient number of relatively healthy people to stabilize the market.”

“The [AHCA] would tend to increase average premiums in the [individual health insurance] market prior to 2020 and lower average premiums thereafter, relative to projections under current law.”

“Under the [AHCA], insurers would be allowed to generally charge five times more for older enrollees than younger ones rather than three times more as under current law, substantially reducing premiums for young adults and substantially raising premiums for older people.”

“With less federal reimbursement for Medicaid, states would need to decide whether to commit more of their own resources to finance the program at current-law levels or whether to reduce spending by cutting payments to health care providers and health plans, eliminating optional services, restricting eligibility for enrollment, or (to the extent feasible) arriving at more efficient methods for delivering services.”

“Beginning in 2020, the [AHCA] would repeal [ACA actuarial value] requirements, potentially allowing plans to have an actuarial value below 60 percent. However, plans would still be required to cover 10 categories of health benefits that are defined as “essential” under current law, and the total annual out-of-pocket costs for an enrollee would remain capped. [C]omplying with those two requirements would significantly limit the ability of insurers to design plans with an actuarial value much below 60 percent.”

CBO expects that, “businesses that decided not to offer insurance coverage under the [AHCA] would have, on average, younger and higher-income workforces than businesses that choose not to offer insurance under current law.”

“The [AHCA] would eliminate [the ACA’s DSH] cuts for states that have not expanded Medicaid under the ACA starting in 2018 and for the remaining states starting in 2020, boosting outlays by $31 billion over the next 10 years.”

“The [AHCA] would provide $2 billion in funding in each year from 2018 to 2021 to states that did not expand Medicaid eligibility under the ACA. Those states could use the funding, within limits, to supplement payments to providers that treat Medicaid enrollees.”

“The [AHCA] would make a number of additional changes to the Medicaid program, including these:

  • Requiring states to treat lottery winnings and certain other income as income for purposes of determining eligibility;
  • Decreasing the period when Medicaid benefits may be covered retroactively from up to three months before a recipient’s application to the first of the month in which a recipient makes an application;
  • Eliminating federal payments to states for Medicaid services provided to applicants who did not provide satisfactory evidence of citizenship or nationality during a reasonable opportunity period; and
  • Eliminating states’ option to increase the amount of allowable home equity from $500,000 to $750,000 for individuals applying for Medicaid coverage of long-term services and supports.”

Screenplays, new business ventures and major legislation typically have problems in Act II.  Hopes were raised so high in Act I.  Now, things seem to drag on and on, pointlessly.   Friends tell you to give up or start over and enemies . . . well.

Last week, two House committees – Energy and Commerce, Ways and Means – produced the budget reconciliation bill drafts, sub nom the American Health Care Act – that were scheduled to have been delivered to the House Budget Committee by January 27.  The Budget Committee (remember, this is budget reconciliation) now will seek to deliver to the House floor an AHCA draft that can get 218 votes despite a feared CBO analysis that may be published today.  Here are highlights of the current bills.

Individual mandate taxes and employer mandate taxes are repealed, sort of.  Technically, the employer mandate tax (26 U.S.C. § 4980H) is set at $0 for tax years beginning after December 31, 2015.  Puzzlingly, however, ACA coverage reporting mandates and penalties are untouched.    So, if you were hoping to avoid dealing with the IRS about 2015 tax assessments, or Form 1095-C reporting issues, you’ll need Budget Committee or House floor amendments.  And, while the individual mandate dies, the AHCA authorizes insurers to charge a 30% premium for people who want to buy coverage after they become ill or injured.  That’s the trade-off for keeping the ACA mandate to sell coverage to people with pre-existing conditions.

Medicaid expansion, which the ACA promised to fund only to 2019, is repealed after 2019.  Further, states will be paid a capped amount per individual enrolled in Medicaid.  However, the AHCA restores DSH payments that hospitals lost under the ACA and gives states much more authority to police Medicaid eligibility and ferret-out fraud.

ACA premium and cost sharing subsidies are repealed and replaced with tax credits based on age and family size.

Almost all the ACA’s new taxes are repealed, along with the ACA’s FSA limits.  The big exception is the Cadillac Plan tax, which gets buried and then rises from the grave, zombie-like, in 2025.

We don’t plan to get too excited about anything until we see (a) what the House sends the Senate and (b) what HHS Secretary Tom Price does to reform, by administrative rule and sub-regulatory guidance, what cannot be changed by budget reconciliation legislation.  For example, in a March 10 news release, the Secretary promised to do, “everything within our authority to provide our nation’s governors and state legislatures with greater flexibility on how they utilize Medicaid resources in caring for those in need.  This will include a review of existing waiver procedures to provide states the impetus and freedom to innovate and test new ideas to improve access to care and health outcomes.”  We suspect that new HHS rules (and, later, IRS and DOL rules) will become bargaining chips in negotiations over legislation that will need 60 Senate votes.

We’re in the middle Act.  It’s messy and we’ll need a while to see where we’re going.  As Quasimodo would have said, “The bills . . . the bills!”

Update:  On March 16, 2017, the House Budget Committee approved (19-17) the AHCA without amendment.

During the week reviewed, no new bill was introduced which, if passed, would repeal or replace the Affordable Care Act, and little else happened at the three main ACA enforcement agencies – DOL, HHS and IRS.

Department of Labor

The Department of Labor still has no Secretary and the nominee, Andrew Puzder, has not yet been given a hearing.  A DOL.gov site redesign was apparent, but it says nothing regarding the agency’s implementation, or not, of Executive Order 13765, which commands ACA enforcement agencies to –

exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications,

“to the maximum extent permitted by law.”

Health and Human Services

Former Congressman Tom Price (R-GA) was confirmed as the new HHS Secretary February 9, 2017.  On that date, most HHS web pages related to the ACA remained substantially as they were the day before President Trump’s inauguration. There was no mention of E.O. 13765.  Nevertheless, the Price confirmation may be the most significant development of the week.  If majority leaders in the House and Senate cannot produce soon a repeal/replace bill supported by a majority of each majority, the new HHS Secretary figures to become the project manager by default.

Internal Revenue Service

The Internal Revenue Bulletins for February 6 and February 13 include no reference to the employer mandate tax assessment procedures forecast to be rolled-out in “early 2017.”  We doubt that this prolonged silence was provoked by the regulatory freeze executive order, since a February 2 White House Memorandum seems to confine that freeze to “significant” regulations, and the employer mandate regulations were not deemed “significant” by the IRS.  See 79 Fed. Reg. 8,577 (Feb. 12, 2014, left column).  And no, the IRS website doesn’t mention E. O. 13765 either.

We doubt that Gershwin tune, “I Got Plenty O’ Nottin’,” was intended as political prophecy.  It just turned out that way.