individual mandate - Shenandoah University Business Symposium

ACA Update Focused on the Employer
Mandate Final Regulations
Shenandoah University Business Symposium
March 25, 2014
John M. Peterson
Kaufman & Canoles, P.C.
[email protected]
(757) 624-3003
The following disclosure is required pursuant to IRS Circular 230 and
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legal advice at this presentation.
PPACA Overview & Timeline
Health Insurance Reforms
Individual Mandate
Health Insurance Marketplace & Subsidies
Large Employer Mandate
PPACA Overview & Timeline
The 4 Patient Protection &
Affordable Care Act Principles
1. Health insurance reform (no medical rating)
2. Begets requirement that everyone have coverage or
purchase insurance (individual mandate)
3. But health insurance is expensive so provide
Federal financial assistance towards the cost
(Marketplace subsidies)
4. But to control government subsidies have to require
that large employers continue to subsidize their
employees health insurance (employer mandate)
ACA Key Events- Past
• March 23, 2010- PPACA enacted
• June 28, 2012- Supreme Court validates
• November 6, 2012- election, no change
• December 28, 2012- employer mandate proposed Regs
• January 1, 2013- .9% & 3.8% “pay for” taxes began
• March 2013- “Exchange” became “Marketplace”
ACA Key Events- Past
• July 1, 2013- original deadline to start tracking employee
hours (large vs. small, look-back measurement period)
• July 9, 2013- employer mandate delayed until 2015
• October 1, 2013- distribution of Marketplace notice, first
Marketplace open enrollment period began
( website rough opening)
ACA Key Events- Past
• January 1, 2014
– Health insurance reforms began (or at 2014
insurance renewal)
– Health insurance Marketplace coverage and
subsidies began (if purchased by 12/23/13)
– Individual mandate & penalties began
(subject to exceptions, exemptions)
ACA Key Events- Recent/Soon
• February 10, 2014- IRS issued final regulations on the
employer mandate (4980H)
– New 1 year delay for 50-99 employees
– Other transitional relief & clarifications
• March 6, 2014- IRS issued final regulations on the
large employer information reporting requirements and
processes associated with determining liability for the
employer mandate
• March 31, 2014- Initial Marketplace open enrollment
period ends (applications made by this date avoid
individual mandate penalty for 2014)
ACA Key Events- Future
• July 1, 2014- new deadline to start tracking employee
hours (large vs. small, look-back measurement period)
• November 15, 2014 - February 15, 2015- Marketplace
open enrollment period for 2015 coverage
• Maybe in 2014? – IRS issues Regulations preventing
discrimination in how employer provided group health
insurance is offered/utilized
ACA Key Events- Future
• January 1, 2015 (or first day of 2015 health plan year)large (>99) employer mandate & penalties begin
• January 1, 2016 (or first day of 2016 health plan year)large (50-99) employer mandate & penalties begin
• January 31, 2016- Large (>49) employers file 2015
forms (1094-C full time count and 1095-C offer of
minimum essential coverage by employee/month)
• ?? Regulations on auto-enrollment >200 employees
• 2018- 40% “Cadillac” coverage excise tax begins
Health Insurance Reforms
4 Health Insurance Markets
• Individual (on and off exchange/Marketplace)
• Small Group (<50 in 2014 and 2015, <100 in
2016, possibly larger in 2017 and future)
• Large Group
• Self-funded/self-insured
(Grandfathered plans enjoy some exceptions)
Major Insurance Reforms
• No health based ratings/underwriting
(community rating)
• Guaranteed issue & renewability
• No annual dollar limits on essential health
• No lifetime dollar limits on essential health
Major Reforms/Mandates
• No-cost preventive care (no co-pays or
– Includes contraception for women
• Cover dependent children through month turn
26 (includes step and foster children)
Major Reforms/Mandates
• Maximum 90 day waiting period from date of
– Eligibility based on lapse of time = 90 days from
– Eligibility based on orientation period not > 1
month + 90 days
– Eligibility based on average hours per period can
measure for 1 year then offer within 1 month
– Eligibility based on cumulative hours (1,200 max)
Major Reforms/Mandates
• Deliver new Summary of Benefits and
Coverage (SBC)
• Expanded claims and appeals procedures
• No rescission of coverage (except fraud or
• Non-discrimination requirements (when
guidance issued)
Individual and Small Group
• Premiums established by geographic rating
area (not health of individual or group)
• Premium age banding at maximum 3 to 1
disparity (age 64 vs. age 21)
• No sex based ratings
Age Banding
Individual and Small Groups Must Cover
10 Essential Health Benefits
• Ambulatory patient
• Emergency services
• Hospitalization
• Maternity and newborn
• Mental health &
substance abuse
• Prescription drugs
• Rehabilitative &
habilitative services
• Laboratory services
• Preventive & wellness
services & chronic
disease management
• Pediatric care, including
dental & vision
Comments on EHB
• Notable medical services not EHB:
Cosmetic surgery
Adult dental and eye exams
Routine foot care
Weight loss programs & surgery
Long term care
Private nursing
Comments on EHB
• Level of EHB benefits set by “benchmark”
plan (example types of prescriptions)
• Virginia benchmark plan requires coverage
– Adult eye exams
– Routine foot care
– Infertility
Small Group
Large Group
Community rating &
3:1 age band
Cover 10 EHBs
No pre-existing excl
90 day wait
No annual or
lifetime limits
Reform Applicability
Kids to 26
No cost preventive
No Individual Policy Delay in Virginia
• Responding to angst over cancellation of
non-ACA compliant individual policies a 1
year (now 3 year) grandfathering is allowed if
authorized at state level and carriers agree
• Virginia Board of Insurance has rejected and
insurance carriers are not willing to extend
non-compliant policies- no delay in Virginia
Health Reforms EnforcementThe Forgotten $100/day Penalty
• Section 4980D excise/penalty tax
$100/day per affected employee ($36,500/year)
Applies to all size employers
Not delayed, already in effect in 2014
Self report on IRS form 8928
• Self-correct within 30 days = no penalty
• “Reasonable cause” cap at 10% of health
Health Reforms EnforcementThe Forgotten $100/day Penalty
• Most reforms baked into health insurance
contract, little employer concern
• Employer concerns:
– Failure to distribute SBC
– Exceeding maximum 90 day wait
– Deny free contraception (litigation)
Individual Mandate
Individual Mandate 2014
• Beginning with the month of January, 2014,
everyone must have “minimum essential coverage”
(MEC) or be penalized for each full month without
coverage (unless exception/exemption applies)
• Includes you, your spouse (if filing jointly) and your
dependents (all individuals included on the tax return)
• Coverage can be purchased from your or your
spouse’s employer (if offered), on the individual
market, from the Marketplace or provided by
Medicare, Medicaid, Tricare, CHIP or other
government programs
Individual Mandate
• Penalty = greater of flat dollar amount per person or
specified percentage of household income in
excess of income tax filing threshold:
– 2014 $95 or 1% of excess
– 2015 $325 or 2% of excess
– 2016 $695 or 2.5% of excess
• Household income is Adjusted Gross Income (AGI)
with the following add backs:
– Foreign income excluded from AGI
– Tax exempt or excluded interest
– Any Social Security benefits not already included in AGI
Individual Mandate
• Income tax filing thresholds (2013)
– Single $10,000
– Married filing joint $20,000
• Dependent income included if dependent required to
file an income tax return (parent can elect to include)
• Dollar penalty for dependents under 18 is 50% of
regular amount
• Maximum dollar penalty for any household is 3 times
the dollar amount
Individual Mandate
• 2014 Example:
– 5 person household (2 parents, adult child
>17 and 2 children <18), none insured
– Household income $50,000, assume filing
threshold $20,000
– Dollar penalty before limitation = $380 (3
adults and 2 children @ 50% = 4 x $95)
– Capped dollar penalty $285 ($95 x 3)
– % penalty $300 ($50,000 - $20,000 x 1%)
– Pro-rate $300 penalty for # of months
without coverage
Individual Mandate
• 2016 Example (same facts):
– 5 person household (2 parents, adult child
>17 and 2 children <18), none insured
– Household income $50,000, assume filing
threshold still $20,000
– Dollar penalty before limitation = $2,780 (3
adults and 2 children @ 50% = 4 x $695)
– Capped dollar penalty $2,085 ($695 x 3)
– % penalty $750 ($50,000 - $20,000 x
– Pro-rate $2,085 penalty for # of months
without coverage
Individual Mandate
• Exceptions/exemptions from individual penalty:
– Income below the tax filing threshold
– Premiums for lowest cost plan available from
employer or marketplace (Bronze) exceeds
8% of household adjusted gross income (net
of marketplace subsidies)
– Gap in coverage for less than 3 calendar
– Low income individuals in states not
expanding Medicaid
– Apply by 3/31/14 even if coverage not
effective until 5/1/14 (4 month transition)
Individual Mandate
• Hardship exemptions (apply through
– Eviction & homelessness
– Death of close family member
– Casualty to residence
– Bankruptcy
– Recent unpaid medical expenses
• Estimated 24 million excepted/exempt
• IRS can charge interest on unpaid penalty tax but
prevented from collecting via tax liens and levies
– Essentially can only collect from refunds
Health Insurance Marketplace
Health Insurance Marketplace
• What it is: a government operated online “storefront” in
each state for residents to shop for and purchase
individual health insurance
• Had been called the “exchange” until spring 2013
• Marketplace offers private insurer Qualified Health Plans
(QHP), no government insurance involved
• 14 states operating their own, 36 states operated my
federal government (Federally Facilitated Marketplace)
Health Insurance Marketplace
• All individuals lawfully present in the US and not
incarcerated can shop for and purchase health insurance
through the new health insurance Marketplace
– Everyone can “comparison shop”
• Only factors determining Marketplace rates are geographic
location (“rating area”), age and smoker status
– Virginia divided into 12 rating areas (see next slide)
– 3 to 1 maximum age banding between ages 21 and 64
– No rate difference due to sex or medical condition
– Smokers (4 or more per week) = up to 50% rate hike
Health Insurance Marketplace
• All policies graded based on “actuarial value”
– Measure of relative generosity
– What % of standard medical costs will policy cover
• 4 “metal” tier insurance options
– Bronze 60% actuarial value (AV)
– Silver 70% AV
– Gold 80% AV
– Platinum 90% AV
Catastrophic Plan
• In addition to the 4 metallic tiers the Marketplace will offer
a high deductible catastrophic plan to certain individuals
– Younger than age 30; or
– No other coverage “affordable”; or
– Obtained “hardship” exemption
• Meets individual mandate but not eligible for subsidies
• Covers 3 primary care visits and no-cost preventive care
12 Virginia Rating Areas
7. Richmond
8. Roanoke
9. Virginia Beach-Norfolk
10. Arlington/Alexandria
11. Winchester
12. All other non-MSA
Lowest Monthly Virginia Rates
Bronze Coverage, Area 9
2nd Lowest Silver
Age 21
Age 64+
Note exact 3 to 1 ratio
Marketplace Enrollment Periods
• 2014 open enrollment 10/1/2013 – 3/31/2014
• 2015 open enrollment 11/15/2014 – 2/15/2015
• Special enrollment opportunities:
– Marriage
– Birth or adoption of a child
– Permanent move to different rating area
– Losing coverage other than by voluntary quit or
failure to pay premium
SHOP Marketplace
• For small employers to purchase group
• Small means < 50 (< 100 in 2016)
• Must use SHOP to claim Small Business
Health Care Tax Credit
• Direct enrollment via broker in 2014
• Online enrollment promised for 2015
Marketplace Subsidies
2 Marketplace Subsidies
• APTC- Individuals and families with household income
between 100% and 400% of Federal Poverty Level who
purchase through the Marketplace will be potentially
eligible for “advance premium tax credits” paid directly by
the Marketplace to their selected insurer
• CSR- Those between 100% and 250% of FPL will
receive “cost-sharing reductions” (reduced deductibles
and co-pays) if they purchase at least “Silver” coverage
(70% actuarial value)
• Collectively = Marketplace “subsidies”
Advance Premium Tax Credit (APTC)
• Individuals and households 100% to 400% FPL
– Available to 47% of US households
– 20% are below 100%
– 33% are above 400%
• Marketplace (HHS) pays APTC directly to selected
insurer “in advance” based on representations of
households estimated 2014 income
• Individual/household pays a % of INCOME,
government pays the balance
Advance Premium Tax Credits
• APTC operates by capping the individual/household share of
the premium for 2nd lowest cost Silver plan at between 2% and
9.5% of household income
• NOTE: APTC caps individual/household share of premium at a
% of household income, not a % of the actual premium
• Actual premium irrelevant to the individual/household
100%-133% FPL pays 2% of household income for 2nd lowest
cost Silver plan, government pays the balance
300%-400% FPL pays 9.5% of household income for 2nd
lowest cost Silver plan, government pays the balance
Sample 2014 Federal Poverty
Levels/Lines (FPL)
• One person household
– 100% FPL $11,670
– 400% FPL $46,680
• Two person household
– 100% FPL $15,730
– 400% FPL $62,920
• Three person household
– 100% FPL $19,790
– 400% FPL $79,160
• Four person household
– 100% FPL $23.850
– 400% FPL $95,400
APTC Table
• Percentage of household income contribution towards
2nd lowest cost Silver (70%) coverage in Marketplace:
100% to 133% FPL
From 133% to 150%
From 150% to 200%
From 200% to 250%
From 250% to 300%
From 300% to 400%
3% to 4%
4% to 6.3%
6.3 % to 8.05%
8.05% to 9.5%
• Between bands use inverse linear sliding scale
– 225% FPL is half way between 200%-250% band
– Household income contribution half way between 6.3% and
8.05% = 7.04%
• See K&C detailed APTC chart
K&C APTC Chart
• Example: $30,000 family of 4 falls at 125%
FPL, pays 2% of income ($50/month) towards
2nd lowest cost Silver
• Below 100% FPL no subsidy (Medicaid nonexpansion gap)
• Above 400% FPL no subsidy
• APTC provided “in advance” based on estimate
of 2014 income and reconciled on individual tax
• Rarely exactly right- rates only smooth between
• 100%-133% FPL (2%) and
• 300%-400% FPL (9.5%)
• If too little, claim additional refundable credit
• If too much, repay to IRS, subject to maximum
repayment limits
Limits on APTC Repayments
• 100% to 200% FPL
– Single $300
– Married Filing Joint
• 300%-400% FPL
– Single $1,250
– Married Filing Joint
• 200%-300% FPL
– Single $750
– Married Filing Joint
APTC Pay Back Example 1
• 4 person household estimates 2014 income
@ $31,000 (130% FPL)
• Assume 2nd lowest Silver premium = $10,000
• Family share 2.0% x $31,000 = $620
• APTC = $9,380
• Wage earner gets $1,000 bonus, actual
income goes to 135% FPL
• Revised share of premiums 3.12% = $998
• Owes $378 difference with tax return
APTC Pay Back Example 2
• 4 person household estimates 2014 income
@ $95,000 (barely under 400% FPL)
• 2nd lowest Silver premium $12,000
• Family share 9.5% x $94,000 = $8,930
• APTC = $3,070
• Wage earner gets $1,000 bonus, goes above
400% FPL
• Loses entire $3,070 APTC (300% tax rate!)
Cost Sharing Reductions (CSR)
(Reduced Deductibles & Co-Pays)
Never Subject to Repayment
100%-150% FPL
70% Silver increase to 94%
150%-200% FPL
70% Silver increase to 87%
200%-250% FPL
70% Silver increase to 73%
Employer vs. Marketplace Subsidy?
• To be eligible for Marketplace subsidies employee cannot be
offered “adequate” and “affordable” coverage from employer
• “Adequate” means at least Bronze (60% actuarial value)
coverage- virtually all current offerings meet this standard
• “Affordable” means the employee’s share of the self-only
coverage premium cannot be more than 9.5% of his income
• If employer offers coverage for spouse and/or dependents (even
if entire premium paid by employee) then spouse and dependents
are also ineligible for Marketplace subsidies
• Employer may be inadvertently “harming” certain lower
income employees by offering coverage
Subsidy Analysis Required
• Analyze workforce to determine value of Marketplace subsidies
• Requires knowledge of employee’s household size and
household income
• Household size: taxpayer, spouse if filing joint, dependents
• Household income: taxpayer, spouse if employed, dependents
if required to file a tax return
• Compare cost of coverage in Marketplace (net of subsidies) to
cost of employer group coverage
Illustrating the Subsidies
• Joe Employee age 35 earns $30,000/year ($15/hour)
and supports a family of 4 (unemployed spouse age
35 and 2 children under age 20), falls at 126% Federal
poverty level
• Joe lives in Virginia Beach (Virginia Rating Area 9)
• 2nd lowest cost silver plan (70% actuarial value)
• Total annual premium for all 4 = $9,470
• Family share of premium 2% of income = $50/month
= $600/year
• APTC $9,470 - $600 = $8,870
• Cost sharing reductions increase to 94% AV
Illustrating the Subsidies
• Buy down to Bronze (60% actuarial value) family
• Total annual premium $7,407
• APTC of $8,870 covers entire cost
• Family share of premium $-0• But no cost sharing reductions since didn’t buy
• $50 month upgrades from 60% Bronze to 94%
better than Platinum
ACA Savings for Employee
• Employer of “Joe Employee” currently offers
Bronze (60%) coverage at a cost to Joe of
$200/month for the self-only premium with an
option to add the family for $700/month
(employer subsidy $200/month)
• Offering is “adequate” (Bronze) and
affordable (self-only premium <9.5% of
wages) so Joe cannot receive any
Marketplace subsidies
ACA Savings for Employee
• Employer decides it’s $200/month
contribution can’t come close to the
Marketplace subsidies
• Employer eliminates Joe from employer plan
and raises his pay by $200/month effective
1/1/2014 so Joe can take advantage of
$9,000+ of Marketplace subsidies
ACA Savings for Employer
• Small law firm currently pays the $7,000
insurance cost for the 3 person family of a
valued employee making $35,000/year
• Firm learns that 3 person $35,000 household
falls at 177% FPL and household contribution
is 5.24% of income ($1,834/year)
ACA Savings for Employer
• Firm drops employee & family from coverage
and raises employee’s salary by $2,500
effective 1/1/2014
• Firm assists employee in purchasing Silver
coverage (enhanced to 87% AV) through the
Marketplace (better value than employer
• Firm realizes $4,500 savings on 1 employee
Small Employer Strategies
• Don’t offer “affordable” coverage to any “lower income”
employees who can benefit from Marketplace subsidies after
January 1, 2014
• Help steer employees to Marketplace opportunity
• Strategies to eliminate employer “offer” or make “unaffordable”
• Only offer coverage to 40 hour full-time employees and
reduce lower income to 39 hours
• Offer only high priced coverage to ensure self-only premium
is “unaffordable” for lower income
• Employees pay 100% of premium via cafeteria plan
• Enroll through SHOP
• But only avoid minimum participation and contribution
requirements during 30 day window
Small Employer Strategies
• In comparing “value” of employer subsidy to the Marketplace
subsidy remember that the employer subsidy is more valuable
• Employer subsidy is tax free to the employee
• Employee’s share of Marketplace premium is after tax (nondeductible)
• Can still offer “higher income” employees insurance in 2014
• Nondiscrimination regulations not yet issued
• IRS says regulations not effective until 2015 at the earliest
• We’ll likely be discussing non-discrimination rules next yearstay tuned
• Possible long term result: small employers may stop offering
group insurance and push all employees to the Marketplace?
Large Employer Strategies
• Don’t offer “affordable” coverage to “lower income” part-time
employees after January 1, 2014
• Part-time = less than 30 hours/week in prior “measurement
• Enables those employees to enjoy Marketplace subsidies
and will never expose employer to penalties
• Consider not offering “lower income” full-time employees
adequate and affordable self-only coverage 1/1/14
• Allows lower income employees to receive Marketplace
subsidies until 2015 renewal
• But employer not likely to continue this practice when
employer mandate starts in 2015
Large Employer Strategies
• Consider dropping spouse coverage
• No ACA requirement to ever offer spouse coverage
• Enables lower income employee’s spouse to obtain
subsidized Marketplace coverage
• UPS and UVA notable examples
• Must offer dependent coverage to avoid penalty
• Can delay until 2016 if “taking steps” towards
expanding coverage in 2015
Employer Mandate
February 10, 2014 Final
Employer Mandate
Large employers
will be subject to nondeductible
penalty taxes
unless they
adequate and affordable
group health benefits to their
employees (and children to age 26)
*Full-time employee defined as 30 hours/week or
130 hours/month*
Key Concepts
• No employer is required to offer health
insurance (just strongly encouraged)
• Small employers (96% of all employers) are
never subject to the mandate or penalties
– But if they choose to voluntarily offer group health
they must comply with all the insurance reforms
• Large employers never have to offer coverage
to (or can be penalized with respect to) parttime employees (<130 hours/month)
Mandate Effective Date
• Large employer penalties calculated monthly,
essential to know your start month
• Original effective month January 2014
• IRS Notice 2013-45 delayed mandate to January
• Final regs delay mandate for “some” 50-99
employers to January 2016 (see below)
Fiscal Year Delay to Renewal
• Some large employers will qualify for an additional delay
until their 2015/2016 health insurance renewal date
– Must have had a fiscal year plan as of 12/27/12
– Must not have changed fiscal year
– As of renewal prior to 2/9/14:
• Offered to 33% or covered 25% of all employees
• Offered to 50% or covered 33% of full-time
– Must actually offer adequate and affordable coverage
to all full-time on 2015/2016 renewal date
Who is the Employer?
• “Employer”- treat related entities as 1 employer for
purposes of determining employer size (‘applicable
large employer”)
• Apply controlled group and affiliated service group
rules of IRC section 414(b), (c), (m) and (o)
• But treat each related company separately for
purposes of determining and assessing penalties
Who is an Employee?
• “Employee” determined under the common law test
– Under who’s direction and control?
– Are independent contractors properly classified?
– Workers hired through staffing companies or PEO?
– Good news- employer can take credit for health
insurance provided by staffing company or PEO so long
as employer is charged a higher fee for those EEs
– Significant danger if worker is misclassified
• Excluded from “employee” definition
– Sole proprietors, partners in partnerships and >2% S
corporation shareholders
– New: bona fide volunteers
Counting Hours of Service
• “Hours” include:
– Hours worked
– Hours paid while not working (paid holiday,
vacation, jury duty, etc.)
– Special unpaid leave of absence (FMLA.
USERRA, unpaid jury duty)
• Either credit hours or ignore these periods in
– Educational organizations- employment break of 4
or more consecutive weeks
• Either credit hours or ignore break
Counting Hours of Service
• Employees paid hourly must count actual hours
• Employees not paid hourly must choose from 3
– Try to track actual hours
– Credit 8 hours/day or 40 hours/week if work on
that day or week
– Other reasonable basis
Determining “Small” Exemption
• 50 or more full-time employees + “full time equivalents” in
prior calendar year = large employer for next calendar year
– 49 or less = exempt “small” for next year
• Full-time employee = 30 or more hours per week or 130 or
more hours per month
– 52 weeks x 30 hours divided by 12 = 130/month
• Only for small vs. large determination part-time employee
hours are converted to “full-time equivalents” (FTEs)
• Calculation made for each month in prior year then
averaged to determine status for the following calendar
New 50-99 1 Year Delay
• In performing the small employer test in 2014
qualifying employers can substitute 100 for
the normal 50 threshold to be considered a
large employer in 2015
• Qualification requirements:
– Has not reduced employees or hours in 2014
– Has not reduced coverage offered 2/9/14
– Signs “certification” of compliance
Small Employer Calculation
Template for determining full-time employees and FTEs for a month:
1. List all employees for the month and their hours
2. Sort by hours (high to low)
3. Number of employees at 130 or more hours = “actual” fulltime employees
4. Total the hours for all other employees (but don’t count more
than 120 hours for any one employee) = total “part-time” hours
5. Divide total part-time hours by 120 = number of “full-time
equivalents” (FTEs) (carry to second decimal point)
6. Number of “actual” full-time employees + number of FTEs =
testing “number” for that month
Small Employer Calculation
Average number for prior calendar year determines
status for following calendar year
1. Add the calendar year monthly totals, divide by 12 and round down
to the next lowest whole number
2. If the resulting number is 49 or less (99 in 2014) the employer is
“small” and exempt from the mandate for the following calendar
3. If the resulting number is 50 or higher (100 in 2014) the employer
is “large” and subject to the mandate for the following year (unless
the seasonal employer exception applies)
Monthly Calculation Example
For the month of January 2014 employer had 72 employees:
12 salaried and hourly employees who worked 130 or more hours
(“actual” full time employees)
10 hourly employees who worked between 121 and 129 hours (limit
to 120 hours each = 1,200 total part-time hours for these 10)
50 hourly employees who each worked <121 hours and collectively
worked 4,000 hours
Total “part-time” hours = 1,200 + 4,000 = 5,200
Divide 5,200 hours by 120 = 43.33 FTEs
12 “actual” full time + 43.33 FTEs = 55.33 “number” for January
Special 2014 6 Month Rule
• Special transition rule for 2014 calculations:
– Don’t have to include all 12 months of 2014 in test
– Use any 6 or more consecutive month period
– 28 possible testing periods (6 or more consecutive months)
– Recommendation: test all 28 iterations until you find one <100
– Make permanent record of test results and underlying data to
support 2015 exemption if IRS proposes a penalty
• Any employment changes (hours reductions) need to be in place
by 7/1/14 to capture the requisite 6 month minimum period
• Note: future years will test using all 12 calendar months
– For first calendar year fall into “large” category given until April
1st to offer coverage and avoid penalty for January-March
Seasonal Worker Exception
• If employer fails the <50 general test may still be exempt if:
– Workforce exceeded 50 for no more than 120 days or 4
– 100% of the employees in excess of 50 for those 120 days
or 4 months were seasonal workers
– Can’t combine with special 6 month 2014 transition
• Employer can chose any 120 days or 4 months, not required to
be consecutive
– Suggestion: test as many combinations as needed to
demonstrate exemption
• “Seasonal workers” include those in agriculture, retail during
holidays and “other” reasonably determined seasonal
businesses (summer help in resort areas)
Exempt Small Employer- Stop Here
• 99 or less in 2014 = exempt small employer for 2015: stop
here (future years needs to be 49 or less)
• Determine whether to offer health insurance, to whom and at
what cost without regard to the employer mandate/penalty
• But health insurance reforms will apply to any coverage offered
• Be mindful that offering affordable coverage to lower income
employees will make them ineligible for Marketplace subsidies
• Be mindful that non-discrimination requirements must be
considered once IRS issues regulations
Large Employer Planning
• To plan for and mitigate the impact of the
penalties starting in 2015 (2016 for 55-99) large
employers need a strategy to identify and track
(“measure”) all employees based on their
potential classification as “full-time employees”
who can expose the employer to penalties
• Since penalties are calculated monthly,
identification/measuring must be monthly
Large Employer Employee
• Full-time: 130+ hours/month
• Part-time: always work <130/month
• Variable hour: cannot reasonably determine
whether employee will work 130/month
• Seasonal: will work >130/month but for less
than 6 months/year
Full-Time Employees
• This is the only class that can cause penalties
• Assume every employee falls into this class
until you can demonstrate otherwise
• Salaried employees will almost always fall in
this class
• New employees: apply “reasonable
expectation” test
– But can’t consider likelihood employment be of
short duration
Part-Time Employees
• Employees who will never work 130 or more
hours per month
• Some employers ensuring this result by
limiting total work hours to <130 per month
(or <1,560 over measurement year)
• If calendar month hour tracking difficult, final
regs allow 120 hours for 4 week months and
150 hours for 5 week months
Variable Hour Employees
• At time of hire employer can’t reasonably
determine whether employee will work 130 or
more hours per month
• Employer can “measure” hours for up to a
year before treating as full-time
• IRS concerned about abuse
Variable Hour Employees
• Factors employer must consider:
– Is employee replacing a FT or PT employee?
– Do other employees in similar positions usually
qualify as FT or PT?
– How was position advertised or represented?
• Factor that cannot be considered: knowledge
or expectation that employment will be short
Seasonal Employees
• Employee is hired into a position that lasts for
less than 6 months per year (based on
historical data)
• Do not have to treat as full-time despite
working 130+ hours/month during the “in”
Measuring Part-time and
Variable Hour Employees
• Full-time and seasonal employees will be
relatively easy to identify
• Part-time and variable hour employees will be
more problematic
• Two options:
– Determine status on a current month basis
(“monthly measurement periods”); or
– Determine status on a look-back basis (“look-back
measurement periods”)
Monthly Measurement Period
• Determine each employee’s status based on
how many hours they worked in the current
calendar month
• For weekly tracking systems use 120/hours 4
week months, 150/hours 5 week months
• Once employee crosses threshold have 3
months to offer coverage to avoid penalty
Look-Back Measurement Periods
• Determine full-time status based on look-back
to prior period hours
• Provides measure of certainty with respect to
employees who’s hours may vary from month
to month (part-time or variable hour)
• Prevents a temporary spike in hours causing
reclassification as full-time
Look Back Measurement Process
• Test the employee’s hours during a prior
measurement period (max 12 months)
• Analyze the data, make the status determination
and notify and enroll “full-time” employees during an
optional administrative period (max 90 days)
• Based on hours of employment during the
measurement period treat employees as full-time or
part-time during a future stability period (max 12
Choosing Periods
• Generally advisable to choose 12 month
stability period that coincides with insurance
• Generally advisable to include an
administrative period
• Assuming a 2 month administrative period,
then back into the measurement period
Sample “Look Back” Methodology
• Optimum 12 month measurement and stability periods for a
calendar year health plan:
– Measurement period 11/1/2013 to 10/31/2014 (12 months)
– Administrative period 11/1/2014 to 12/31/2014 (2 months)
– Stability period calendar year 2015 (12 months)
• Example:
– Employee F works an average 32 hours/week and employee P
works an average 28 hours/week during measurement period
– During the following “stability period” employee F “deemed” to be
a full-time employee and P “deemed” to be a part-time employee
irrespective of the actual number of hours worked during that
stability period
Special 6 Month Rule for 2014
• Measurement and stability periods must generally
be the same length (ideally 12 months each)
• Transition rule: employers may use a “short” 2014
measurement period and still use a 12 month 2015
stability period if the measurement period:
– Is at least 6 consecutive months long
– Ends <90 days before 2015 renewal date
– Begins no later than July 1, 2014
Sample 2014 Look Back Periods
• Calendar year plan:
– Measurement period 5/1/2014 to 10/31/2014 (6 months)
– Administrative period 11/1/2014 to 12/31/2014 (2 months)
– Stability period calendar year 2015 (12 months)
• April 1st renewal date
– Measurement period 7/1/2014 to 1/31/2015 (7 months)
– Administrative period 2/1/2015 to 3/31/2015 (2 months)
– Stability period 4/1/2015 to 3/31/2016 (12 months)
• July 1st renewal date
– Measurement period 7/1/2014 to 4/30/2015 (10 months)
– Administrative period 5/1/2015 to 6/30/2015 (2 months)
– Stability period 7/1/2015 to 6/30/2016 (12 months)
Final Status Records
• After selecting the periods and running the analysis
prepare a final report (with supporting payroll data)
• Keep report as proof of which 2014 employees are
“deemed” to be full-time (and can subject the
employer to penalties) in 2015
• Have report available to counter IRS penalty
assertion in late 2016
Note on Waiting &
Measurement Periods
Large employers are exempt from penalties
during the initial 90 day waiting period for new
full-time employees or during the look-back
measurement period for variable hour
employees ONLY if minimum value coverage is
offered at the end of those periods
What About New Employees?
• If classified as full-time (“reasonably expect”
employee to work 130 or more hours/month) offer
coverage within 90 days of hire or risk penalty
• If classified as part-time or variable hour measure
actual employment over a maximum 12 month
special “initial measurement period” and if actual
hours >1,560 (130 x 12) offer coverage within one
month (13 month rule) or risk penalty
What About Rehired Employees?
• If employee gone for 13 weeks can be treated as new
employee upon rehire
– 26 weeks required for educational employees
• Rule of parity: employer can treat former employee as a
new employee if length of period gone is at least 4 weeks
and is less than the prior period of employment
– Example: employee works 6 weeks, is gone 8 weeks,
can treat as new employee
– Example: employee works 2 weeks, is gone 3 weeks,
can’t be treated as new employee (not gone 4 weeks)
Large Employer “a” Penalty
• 4980H(a) penalty (a/k/a the $2,000, no coverage or
sledgehammer penalty)
• If large employer fails to offer qualifying coverage to all of
it’s full-time employees for a particular month and 1 or
more full-time employees receive a Marketplace subsidy
for such month then penalty is $167.67 per full-time
employee in excess of 30 for such month
• $167.67/month = $2,000/year
• Punitive penalty: applies to all full-time employees
including those purchasing employer coverage, those
covered by spouse, Medicare, Medicaid, Tricare, CHIP
and those going without coverage
Large Employer “a” Penalty
• Modifications to “all” requirement by IRS regulations
• Otherwise missing 1 of 10,000 could = $20M penalty
• Proposed regulations permit 5% margin of error
• Could miss <500 of 10,000 and avoid the “a” penalty
• Final regulations permit 30% margin of error for 2015 only
• Then revert to 5% rule for 2016 and future
• Final regulations also increase 30 employee exemption to
80 employees for 2015 only (IRS theory is 30 was 20 less
than 50, 80 is 20 less than 100)
Large Employer “b” Penalty
• 4980H(b) penalty (the $3,000, inadequate/unaffordable
coverage or tack-hammer penalty)
• If large employer fails to offer adequate and/or affordable
coverage to a full-time employee for a month in which the
employee receives a Marketplace subsidy penalty = $250
• $250/month = $3,000/year
• Penalty more understandable than the “a” penalty since
employer is only penalized for employees receiving
government subsidies
“b” penalty cannot exceed what the “a” penalty would have
been had it applied (can’t pay more by offering something
than by offering nothing)
Penalty COLA Adjustments
• Penalties will increase at the rate of health
care costs
• HHS projects 6% increase for 2015:
– $2,000 will become $2,120 ($176.66/month)
– $3,000 will become $3,180 ($265/month)
$3,180 “(b)” Penalty Example
• In 2015 employer offers all 100 full-time employees
adequate but unaffordable coverage
• 30 employees obtain coverage from spouse, Tricare,
Medicare or Medicaid
• 30 employees >400 FPL buy coverage from employer
• 30 employees refuse to purchase any coverage (may be
subject to the individual mandate penalty)
• 10 employees under 400% FPL purchase subsidized
coverage in the Marketplace
• Inadequate/Unaffordable Penalty:
$3,180 x 10 employees receiving subsidies = $31,800
$2,120 “a” Penalty Example
• Same facts as above except employer does not offer any
• Since at least 1 employee received a subsidy penalty =
$2,120 x 20 (100 full-time employees - 80) = $42,400
– Under normal 30 exemption penalty in 2016 would be
$148,400 ($2,120 x 70)
• Strategy: large employers will generally want to offer
minimum essential coverage that is unaffordable or fails
minimum value rather than offering nothing (tack hammer
hurts less than sledgehammer)
Avoiding Employer Penalties
Requirements to avoid employer penalties:
Offer coverage to
All full-time employees that
Provides minimum essential coverage
Meets minimum value
Is affordable
The Coverage Offer
• Offer coverage to all full-time employees
• Offer coverage to dependent children until end of month
attain age 26
– Includes adopted children but not step or foster children
– Dependent coverage not required for 2015 so long as “steps
being taken” to offer coverage in 2016”
• No requirement to ever offer spouse coverage
– UPS and UVA notable employers already dropping spouses
• Offering must be communicated to full-time employees
so they have an effective opportunity to participate
– Recommendation: keep signed election forms or other
acknowledgement from all full-time employees
Minimum Essential Coverage
• Large employers must offer minimum essential
coverage (MEC)
– Means offering a group health plan that provides
medical care
– Relatively easy to qualify as MEC
• Large employer insurance offering not required to
cover the 10 Essential Health Benefits (discussed
Minimum Value
• Employer’s offering must provide at least a 60%
minimum actuarial value
• Actuarial value (AV) is a relative measure of a plan’s
– A plan providing 60% AV would be expected to cover 60% of the
cost of medical/health needs of a standard population
– Employee would cover cost of remaining 40% through co-pays
and deductibles
– HHS and IRS provide AV calculators and safe harbors
• For comparison shopping 4 levels of AV:
Bronze 60% (the base level for employer mandate)
Silver 70% (the base level for Marketplace subsidies)
Gold 80%
Platinum 90%
• Statute: coverage is affordable if the employee’s
premium for self-only coverage is no more than 9.5% of
the employee’s household income
• IRS allowing use of employee’s W-2 Box 1 (gross wages
subject to income tax) as a substitute for household
• Box 1 is AFTER pre-tax 401(k) and cafeteria plan
• Affordability is measured on cost of employee-only
coverage under the lowest cost 60% minimum value
(Bronze) plan offered by the employer
Affordability Safe Harbors
• 3 IRS safe harbors on affordability of employee share of
premium for employee-only coverage:
– 9.5% of Box 1 wages
– 9.5% of lowest hourly wage x 130 hours per month
– 9.5% of Federal Poverty Level (FPL)
• Examples
– Employee earns $5,000/month (Box 1), employee-only
coverage affordable at $475 or less per month
– Employee paid $9.00 per hour, coverage affordable at
$111.15 or less per month ($9.00 x 130 x 9.5%)
– Under current FPL of $11,670, coverage affordable at
$92.38 or less per month ($11,670/12 x 9.5%)
• Use this option as a design based safe harbor
• OK even for months where employee’s wages fall below FPL
Penalty Avoidance Strategies
• Large employer complies with intent of statute
– Offers “adequate” and “affordable” coverage to all full-time
employees and their dependents
– Can exclude spouses
• Employer has <30 full-time employees (<80 in 2015) but is
“large” due to large part time workforce
– No penalty since the “no coverage penalty” only applies to
full-time employees in excess of 30 (80 for 2015)
– But if 50-99 have to start reporting requirements for 2015
Penalty Avoidance Strategies
• Employer limits all hourly paid employees to <130
hours/month in 2014 “look back” measurement period
– 1,560 total hours if using 12 month measurement
• Employer limits all employees < 400% FPL to <130
hours/month in 2014 (no full-time employee can
qualify for subsidized coverage in 2015)
• Employer only employees workers making >400%
FPL or are covered by spouse, Tricare, Medicare,
Medicaid (no employee can receive a Marketplace
subsidy - risky strategy)
Compliance Issues & Planning
• Determination of related employers, common law
employees and hours of service
• Exploration of opportunities to “break” a single employer or
related entities apart to qualify for the small employer
exemption (no later than July 1, 2014)
• Exploration of changes in employment practices (limit
certain employees to <130 hours/month) to minimize “fulltime” population in 2015 (no later than July 1, 2014)
• Must consider employment law concerns with respect to
any strategies under consideration
Caution in Penalty Strategizing
• ERISA Section 510- employers may not …”discharge,
fine, suspend, expel or discriminate against a participant
or beneficiary…for the purpose of interfering with the
attainment of any right to which such participant may
become entitled under the plan…”
• ACA Section 1558- “No employer shall discharge or in any
manner discriminate against any employee with respect
to…compensation, terms, conditions or other privileges of
employment because the employee…” has received a
premium tax credit (subsidy) or is a whistleblower
3 Reporting Requirements
Associated with the Mandate
1. Section 6051- Report cost of employersponsored health care on Form W-2
2. Section 6055- Insurer or self-funded plan
report type and period of minimum essential
coverage (MEC) (ties to individual mandate)
3. Section 6056- Large employer reports “offer”
of MEC to full-time employees (ties to large
employer mandate)
Section 6051 W-2 Reporting
• Employers must report cost of employersponsored health benefits on Form W-2
(started in 2010)
• Allows IRS to accumulate data in anticipation
of implementation of 40% excise tax on
“Cadillac” coverage in 2018
• Currently limited to employers who filed more
than 250 W-2s in prior year (but will expand
Section 6055 MEC Reporting
• Starting for calendar year 2015 IRS must know
which taxpayers received “minimum essential
coverage” (MEC) for each month of the year
• Required to determine taxpayer liability for the
“individual mandate” penalty
• All MEC providers must file new reports (details
by taxpayer by month)
• Insurance company responsible for insured plans
• Employer responsible for self-insured plans
Section 6056 “Offer” Reporting
• Starting for calendar year 2015 IRS must know which
employees of large employers were offered
“minimum essential coverage” (MEC) for each month
of the year
• Required to determine employer liability for the
“employer mandate” penalty
• All large employers will have to file reports (including
the 50-99 group exempt from 2015 penalties)
• Reports will cover all 12 calendar months of 2015,
including months prior to 2015 renewal/effective date
Assessment and Collection Procedures
• HHS will notify employer (section 1411 certification) when
employee applies for subsidized marketplace coverage
– employer will have opportunity to “contest” subsidy
• Effective for 2015 large employers will file new annual
reports with IRS (with copies to employees)
– Insurers and self-funded plans will report similar
information on coverage to IRS
• Employees report premium subsidies on their individual
tax returns (beginning with 2015 returns due by
Assessment and Collection Procedures
• IRS will match 2015 data from HHS/Marketplace,
employer, insurers and employees (probably late 2016)
and send a proposed penalty assessment for 2015 to
• Employer will have an opportunity to dispute/clarify the
facts that led to the proposed assessment
• Ultimately IRS will bill the employer for the penalties
(separate from other tax returns)
• First nastygrams expected late 2016
Transition Relief Summary
• Extended/continued from proposed regs
– Effective date delayed to 2015 renewal date
– 6 month calculation of “small” for 2015
– Possible 6-11 month “short” 2014 measurement
period (depending on renewal month)
– Dependent coverage required until 2016
– Multiemployer (union) coverage sufficient
Transition Relief Summary
• New relief in final regs
– No 2015 penalty for 50-99 “medium” employers
(with conditions, must still do 2015 reporting)
– No 2015 “a” penalty if offer to 70% (vs. 95%)
– No 2015 “a” penalty on first 80 FT employees (vs.
• Relief not extended
– Special 1 time change to fiscal year cafeteria plan
election for year that overlaps 1/1/2014
Latest Delay Overview
Mandate Reporting
<50 (96%)
50-99 (2%)
100+ (2%)
Employer Mandate by the Numbers
• 5%- margin of error permitted in offering coverage to
all full-time employees (30% in 2015)
• 9.5%- maximum % of income self-only premium for
coverage to be “affordable”
• 30- threshold hours per week to be full-time
• 30- threshold number of full-time employees before
any penalty tax applies (80 for 2015 only)
• 50- threshold average number of full-time employees
and “full-time equivalents” in prior calendar year to
be treated as large employer subject to mandate in
following year (100 for 2014 only)
Employer Mandate by the Numbers
60%- Bronze level of coverage (employer mandate)
70%- Silver level of coverage (Marketplace subsidy)
80%- Gold level of coverage
90%- Platinum level of coverage
90- maximum days in waiting period before new
employee must be offered coverage
120- divisor into total part-time hours in a month to
determine “full-time equivalents”
130- threshold hours per month to be treated as full-time
employee (functional counterpart to 30 hours/week)
$176.66- monthly “no coverage” penalty (2015)
$265- monthly “unaffordable coverage” penalty (2015)
Employer Mandate Checklist
Determine “employer”
Determine “employees”
Count hours
Make FT and FTE calcs (100 threshold)
Use 6 or more months in 2014
Special rules for seasonal
If “small” for 2015 stop here
Employer Mandate Checklist
• Divide employees into categories
Full time
Part time
Variable hour
• Determine measurement method and periods
• Calculate “full-time” employees
• Determine effective date of mandate
Employer Mandate Checklist
• Determine cost of compliant coverage
• Decide whether to “pay or play” with respect
to full-time employees
• Extend offer of coverage by effective date
• Gear up for complying with recordkeeping
and reporting requirements
• Maintain audit trail of employee classification
and hours history
Checklist of Major ACA
Requirements by Employer
All Size Employers Whether or
Not Offering Health Insurance
Provide Marketplace notice on October 1, 2013
and all future employees at point of hire
Only Large Employers
Prepare for and deal with the Employer Mandate &
penalty exposure
Collect data and file new informational returns tied
to enforcement of the Individual and Employer
W-2 reporting of value of health benefits (>250)
> 200 - auto enrollment of all eligible employees in
health plan (coming when?)
ACA Requirements Applicable to All
Employers Offering Coverage
No pre-existing condition exclusions
Cover children to age 26
No annual or lifetime limits on EHB
No cost preventive care
No rescission except fraud or misrepresentation
Equitably share MLR rebates with employees
Distribute SBC in prescribed format
Limit medical FSA to $2,500/year
ACA $100/day Penalty Exposure All Employers
Offering Coverage
Notice of choice of physician
Notice of expanded claims & appeal procedures
SBC distribution (penalty delayed until 2015)
Notice of material modification of coverage
Notice of grandfather status
Notice of 1 year delay in offering no cost
contraception (if applicable)
ACA Taxes and Fees Impacting Cost
of Coverage (All Size Employers)
Patient Centered Outcomes Research Institute fee
Transitional Reinsurance Fee (2014-2016)
2018- 40% excise tax on “Cadillac” coverage
John M. Peterson
[email protected]
150 West Main Street Suite 2100
Norfolk, VA 23510

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