Affordable Care Act Review

Affordable Care Act Review

Category Archives: Private Employers

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RIP, Automatic Enrollment

Posted in Affordable Care Act, Coverage Mandates, Government Employers, Insurers and Brokers, Private Employers, Taxes
Sixty-seven months ago, Congress ordered employers of 200 or more full-time employees to switch from opt-in to opt-out enrollment. See 29 U.S.C. § 218a. But the enforcement agencies could not write a rule that did more good than harm, so they gave up. A lame duck Senator killed a bipartisan repeal bill in his committee last… Continue Reading

Request for Information about ALE Reporting Status

Posted in Affordable Care Act, Coverage Mandates, Employee Leasing, Government Employers, Private Employers, Taxes
We work closely with employers (mostly ALEs) and an array of service providers – payroll processors, benefit plan consultants and administrators, software developers and transmitters, employee leasing firms, insurance brokers and insurers. We’re hearing from them and from others pretty consistent impressions of the state of employer readiness to furnish (by February 1, 2016) and to file… Continue Reading

“Make It a Triple”: EEOC Supersizes Wellness Program Rules, Again

Posted in Affordable Care Act, Government Employers, Private Employers
In June 2013, DOL, HHS and IRS explained that they view employer-sponsored wellness programs as narrow exceptions to the ACA’s health status discrimination prohibition. Early this year, the EEOC slathered-on its own rules, derived from the Americans with Disabilities Act (ADA). On October 30, the EEOC proposed a third set of restrictions, related to the Genetic… Continue Reading

Do Seasonal Workers “Count” for Forms 1094-C and 1095-C?

Posted in Affordable Care Act, Coverage Mandates, Government Employers, Private Employers, Taxes
We were asked that recently, proving that there is such a thing as a wrong question. Let’s break it down. The same person may be both a “seasonal worker” and a “seasonal employee,” but those terms are used to discuss separate ACA subjects. This has caused great confusion. Here’s how the Employer Shared Responsibility Cost… Continue Reading

House Passes Significant ACA Amendment by Voice Vote

Posted in Affordable Care Act, Coverage Mandates, Government Employers, Insurers and Brokers, Private Employers
With little apparent Democrat opposition, the U.S. House of Representatives on September 28 routinely passed a bill to allow employers of 50 to 100 employees to avoid the ACA’s especially heavy regulation of small group health plans beginnning in 2016, subject to state rules to the contrary. The lack of controversy suggests that this bill… Continue Reading

Healthcare.gov: No 2015 Employer Subsidy Notices

Posted in Affordable Care Act, Coverage Mandates, Exchanges, Government Employers, Private Employers, Taxes
On Friday afternoon, September 18, the Centers for Medicare and Medicaid Services (CMS) published a set of “Frequently Asked Questions Regarding the Federally-Facilitated Marketplace’s (FFM) 2016 Employer Notice Program.” The update is welcome for what it tells us about the subsidy certification appeal process beginning in 2016, summarized below. It’s troubling, however, for its confession… Continue Reading

Final 2015 Forms 1094-B, 1095-B, 1094-C, 1095-C and Instructions

Posted in Affordable Care Act, Coverage Mandates, Government Employers, Insurers and Brokers, Private Employers
On September 16, 2015, the IRS finalized these ACA coverage reporting Forms and Instructions: 2015 Instructions for Forms 1094-C and 1095-C; 2015 Form 1094-C Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns; 2015 Form 1095-C Employer-Provided Health Insurance Offer and Coverage; 2015 Instructions for Forms 1094-B and 1095-B; 2015 Form 1094-B Transmittal of… Continue Reading

Nondiscrimination in Health Programs and Activities: Proposed Rules from HHS

Posted in Affordable Care Act, Coverage Mandates, Government Employers, Grandfathered Status, Insurers and Brokers, Private Employers, Providers - For Profit, Providers - Not-for-Profit
ACA § 1557(a) (42 U.S.C. § 18116(a)) says: Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681… Continue Reading

Outside Counsel Should Handle Healthcare.gov Subsidy Appeals

Posted in Affordable Care Act, Government Employers, Private Employers, Taxes
Here’s the coming dilemma: let IRS assess employer mandate taxes based on errant Healthcare.gov subsidy certifications or appeal those errors to prevent those assessments.  “Where’s the dilemma?” you say.  Here:  once you know which employees received subsidies, you are exposed to ACA retaliation charges if you later take adverse action action against them.  The best time to escape this trap is… Continue Reading

Top Ten Healthcare.gov Subsidy Counties in Each SEC State

Posted in Affordable Care Act, Coverage Mandates, Exchanges, Government Employers, Private Employers, Taxes
Why should you care? Subsidy certification of even one applicant claiming to be a full-time employee not offered affordable, qualifying 2015 coverage can cause the IRS to assess a non-deductible tax against the applicant’s alleged employer. Employers with low wage employees in a county with a high subsidy rate are most at risk. According to… Continue Reading

2015 Form 1095-C Reporting: IT Vendor Survey

Posted in Affordable Care Act, Government Employers, Private Employers
On August 18, 2014, we posted our, “First Look at ACA Employer Compliance Software.” It’s time for an update. We invited less than a dozen vendors to answer these twenty-two questions. With respect to each 2015 ALE coverage offer reporting service described below, what are your deadlines for – Delivering an executed, written contract? Completing… Continue Reading

Draft 2015 Forms and Instructions for ACA Coverage Offer Information Reporting: Forms 1094-B, 1095-B, 1094-C, 1095-C and 8809

Posted in Affordable Care Act, Government Employers, Insurers and Brokers, Private Employers, Taxes
At about the same time as last year, the IRS has released draft ACA coverage information reporting Forms and Instructions to be used early next year. There are many small differences and one HUGE difference. The IRS decided not to enforce the 2014 reporting requirements, essentially giving covered employers a practice year, if they wanted… Continue Reading

Employer Mandate Amended In A Highway Funding Bill

Posted in Affordable Care Act, Coverage Mandates, Government Employers, Private Employers, Taxes
This seems to be a trend. ACA amendments with some bipartisan support can get done if they are buried in unrelated legislation. When the President signed H.R. 3236, the ACA employer mandate was amended to promote small employer hiring of armed forces members, retroactive to January 1, 2014. Here’s how, quoting the statute. SEC. 4007.… Continue Reading

More Cadillac Plan Tax Guidance from IRS

Posted in Affordable Care Act, Government Employers, Private Employers, Taxes
Even minimum value plans might be “Cadillacs,” the IRS acknowledged in Notice 2015-52. See footnote 8, page 17. That’s our main take-away from the second IRS statement of its regulatory intentions. Code § 4980I (a/k/a/ the “Cadillac Plan tax”) was added by the ACA so that taxpayers with average group health plans would not subsidize, by… Continue Reading

Will § 4980H Require Judicial Amendment Too?

Posted in Affordable Care Act, Coverage Mandates, Exchanges, Government Employers, Private Employers, Taxes
Occasionally, a deep dive into a real world scenario opens our eyes to a plausible, alternate understanding of an important ACA term or rule.  Here’s one.  We’re embarrasssed to admit that our hours of study were provoked by what at first seemed to be a proverbial “stupid question.” Maybe there really aren’t any. Absent applicable transitional relief, most of which vanishes after 2015,… Continue Reading

Simple ACA Rules for Simple (But Not Small) Employers

Posted in Affordable Care Act, Business Organizations, Government Employers, Private Employers, Taxes
You’re an ACA “Applicable Large Employer,” but not by much. You have three executives, none of whom has any HR or benefit plan expertise. You rely on a local payroll service and your insurance agent. You hope they are on top of things, but you worry. You should worry. Generalizing greatly for simplicity’s sake, here… Continue Reading

Form 1095-C Penalties More Than Doubled . . . In A Trade Bill?

Posted in Affordable Care Act, Government Employers, Private Employers, Taxes
Penalties for employer failure to file and furnish 2015 Forms 1094-C and 1095-C just went up. Section 806 of Public Law 114-27 (H.R. 1295, the “Trade Preferences Extension Act of 2015,” June 29, 2015) amended Code sections 6721 and 6722 to raise those penalties substantially. We have warned that each missing Form 1095-C could cost… Continue Reading

FLSA Guidance Highlights Expansive ACA Retaliation Exposure

Posted in Affordable Care Act, Government Employers, Independent Contractors, Private Employers
On July 15, 2015, DOL’s Wage & Hour Division issued Administrator’s Interpretation No. 2015-01, titled, “ The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors.” Nothing new there, right? All well-counseled employers know that the DOL takes an especially dim view… Continue Reading

Budgeting for Employer Mandate Tax Assessments

Posted in Affordable Care Act, Exchanges, Government Employers, Private Employers, Taxes
For October 1 fiscal year employers, it’s budget season. Calendar year employers aren’t far behind. Those doubting their employer mandate compliance need to accrue reserves for non-deductible assessments that the IRS may impose in the coming year. We can help you determine your maximum exposure but we can’t tell you that you have exposure, regardless… Continue Reading

Coverage Offer Reporting: What’s Simple . . . and What’s Not

Posted in Affordable Care Act, Employee Leasing, Government Employers, Private Employers, Taxes
As we gather to gawk at the impending King v. Burwell piñata whacking, here’s a reminder to curb your enthusiasm. Even if your employer mandate dies this month, even if it is not resurrected by legislation or executive action, and even if you provide compliant coverage, most of you will have to report your 2015… Continue Reading

King v. Burwell Forecast: Cloudy with a Chance of Panic

Posted in Affordable Care Act, Coverage Mandates, Employee Leasing, Exchanges, Government Employers, Insurers and Brokers, Private Employers, Providers - For Profit, Providers - Not-for-Profit, Taxes
This is a compliance blog; we don’t do politics. But we can’t explain compliance consequences of the Supreme Court’s King v. Burwell opinion without acknowledging the political context. Here’s the June calendar of the Supreme Court of the United States.               Opinions are posted online on Monday or Tuesday, typically. As early as… Continue Reading

EEOC Wellness Incentive Rules: Damned If You Do, Maybe

Posted in Affordable Care Act, Government Employers, Insurers and Brokers, Private Employers
Almost two years ago, the ACA enforcement agencies jointly published a set of lengthy, detailed, final rules applying the ACA’s enhanced health status discrimination prohibition to employer-administered wellness incentives. On April 16, 2015, the EEOC declared those rules insufficient to satisfy the Americans with Disabilities Act, proposing enhanced ADA rules to be codified at 29 CFR… Continue Reading

King v. Burwell Oral Argument – First Read of the Omens

Posted in Affordable Care Act, Coverage Mandates, Exchanges, Government Employers, Insurers and Brokers, Private Employers
Apologizing to our readers for having advertised live audio that wasn’t, you really can find the Wall Street Journal’s live blog entries here.    The Court’s official audio and transcript may be available as early as March 6, according to some early estimations.  Based on accounts of observers who are commenting immediately, here are our first impressions of likely positions when… Continue Reading