We have suspected for months that the employer subsidy appeals part of www.healthcare.gov wasn’t built and would not be ready for the open enrollment season beginning November 15, 2014.  Turns out that we were overly optimistic. In guidance published October 23, 2014, CMS announced that a paper-only process will be used “through December 31, 2015.”

We had hoped to see, in connection with this sort of update, a draft notice form, with specifics about when, how and to whom such notices will be delivered.  That information is missing from the employer appeal final rules found at 45 CFR § 155.555. Those rules refer back to the notice that an employer is entitled to receive under 45 CFR § 155.310(h).  Here’s the complete text of that sub-section.

(h) Notice of an employee’s eligibility for advance payments of the premium tax credit and cost-sharing reductions to an employer. The Exchange must notify an employer that an employee has been determined eligible for advance payments of the premium tax credit or cost-sharing reductions upon determination that an employee is eligible for advance payments of the premium tax credit or cost-sharing reductions. Such notice must:

(1) Identify the employee;

(2) Indicate that the employee has been determined eligible for advance payments of the premium tax credit;

(3) Indicate that, if the employer has 50 or more full-time employees, the employer may be liable for the payment assessed under section 4980H of the Code; and

(4) Notify the employer of the right to appeal the determination.

Not terribly enlightening.  Mail-in applicant appeal forms are online here (Alabama, Arkansas, Louisiana, Tennessee) and here (Florida, Georgia, Mississippi, Texas, Virginia).  But not employer appeal forms.    The CMS guidance explains its lack of actual guidance thusly:

We understand that Marketplaces face many challenges and competing priorities regarding system development, which may delay completion of systems to implement the electronic functions of an eligibility appeals program. This extended flexibility enables appeals entities to operate the appeals process as current capabilities allow, protecting the due process rights of appellants while providing additional time for appeals entities to complete the systems development work necessary to implement the electronic requirements of the process. We believe this approach strikes a balance between safeguarding appellant’s rights and the demands on appeals entities.

Employers, someday, someone working for you will get a paper notice that someone has obtained a www.healthcare.gov subsidy by attesting to be your full-time employee not offered affordable, qualifying coverage, potentially triggering employer mandate taxes and other liabilities. You’ll have 90 days to appeal.   One person may be listed in the notice, or any number of people.  We can’t show you what the notice looks like.  As far as we can tell, there is no draft ready for publication.  To use IRS lingo, “be on the lookout.”