Congress gave business a break and repealed a portion of the health care reform law last week, when the Senate approved legislation rescinding a controversial tax-reporting requirement. The measure, signed by President Barack Obama on April 14th, repeals a provision that would have required all businesses to file 1099 tax forms for transactions of $600 or more. White House released a statement announcing the Obama had signed the measure, which it said “repeals the expansion in the Affordable Care Act of requirements for businesses to report information to the Internal Revenue Service on payments for goods of $600 or more annually to other businesses and increases the amount of overpayment subject to repayment of premium assistance tax credits for health insurance coverage purchases through the Exchanges established under the Affordable Care Act.”

The Department of Labor’s Employee Benefits Security Administration has updated its Affordable Care Act web page with Affordable Care Act Implementation FAQs Part VI, available at http://www.dol.gov/ebsa/faqs/faq-aca6.html.

The Department of Health has issued a new fact sheet on Grandfathered Health Plans: http://www.hhs.gov/ociio/regulations/grandfather/factsheet.html.

The Affordable Care Act requires all non-grandfathered group health plans to implement internal claims and appeals processes beginning with the first day of the first plan year occurring on or after September 23, 2010.  The agencies have now released model notices for the plans to provide participants with (1) notice of an adverse benefit determination, (2) notice of a final internal adverse benefit determination, and (3) notice of a final external review decision.  To download copies of the notices, use the following links:

Notice 1: http://www.dol.gov/ebsa/IABDModelNotice1.doc
Notice 2  http://www.dol.gov/ebsa/IABDModelNotice2.doc
Notice 3: http://www.dol.gov/ebsa/IABDModelNotice3.doc

Also, IRS published a Notice (2010-63, 2010-41 IRB, 9/20/2010) on September 20, 2010, explaining its interpretation of the Affordable Care Act’s extension of Section 105(h) non-discrimination testing to fully insured group health plans.  IRS is requesting public comments for the forthcoming IRS guidance on the new rules.

As we have discussed in prior Employment Law Advisories, the Affordable Care Act extends to non-grandfathered, fully-insured group health plans, the long-standing Section 105(h)  non-discrimination requirements previously imposed only on  self-insured medical expense reimbursement plans.  (Medical expense reimbursement plans under Section 105(h) are employer sponsored, self-funded plans that reimburse a participant or beneficiary for an eligible medical expense not otherwise covered by a policy of health insurance.) 

Self-insured medical expense reimbursement plans have been subject to Section 105(h) since the 1970s.  Under Section 105(h) self-insured medical expense reimbursement plans have been barred from discriminating in favor of highly-compensated individuals as it relates to plan eligibility and total benefits delivered.  If a plan is found to be discriminatory under Section 105(h), then any excess benefit delivered to a highly compensated individual must be included in that individual’s gross income, subject to tax.

In Monday’s Notice, IRS explained that it is the intent of the Affordable Care Act to extend some, but not all of the 105(h) non-discrimination rules to fully-insured group health plans.  IRS said it interprets the Affordable Care Act to use the same non-discrimination testing and definition of “highly compensated individual” as Section 105(h).  However, under the Affordable Care Act, if a fully-insured group health plan is found to discriminate in favor of highly compensated individuals, the result of the excess benefit is not treated as taxable income to the highly compensated individual.  Instead, a fully-insured group health plan failing to comply with Section 105(h) is subject to a civil action to compel it to provide non-discriminatory benefits, and to an excise tax of $100 per day per individual discriminated against for each day the plan does not comply with Section 105(h), or a civil money  penalty of $100 per day per individual discriminated against.

To summarize then:  (1) A self-insured medical expense reimbursement plan that fails to comply with Section 105(h) results, under long-standing rules, in the loss of a tax-free benefit to the highly compensated individual, but (2) a fully-insured group health plan that fails to comply is subject to a civil action to compel the plan to provide non-discriminatory benefits, and the plan or plan sponsor is subject to an excise tax or civil money penalty of $100 per day per individual discriminated against.

Again, the Affordable Care Act’s extension of Section 105(h) non-discrimination testing to fully-insured group health plans does not apply to grandfathered group health plans.  But the pre-existing Section 105(h) non-discrimination testing rules continue to apply to self-insured medical expense reimbursement plans regardless of whether they are grandfathered plans.

IRS is considering issuing guidance on the extension of Section 105(h) testing and has requested public comments be received by IRS no later than November 14, 2010.  To send IRS a comment:

(1) E-mail to Notice.Comments@irscounsel.treas.gov and include “Notice 2010-63″ in the subject line of your e-mail; or

(2)  Snail mail to CC:PA:LPD:PR (Notice 2010-63), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044.

Article courtesy of Lehr Middlebrooks Vreeland (www.lehrmiddlebrooks.com).

The Department of Labor’s Employee Benefits Security Administration has posted the following related to the Affordable Care Act (ACA):

• FAQs on ACA Implementation, available at  http://www.dol.gov/ebsa/faqs/faq-aca.html
• Interim Procedures for Internal Claims and Appeals (Technical Release 2010-02), available at  http://www.dol.gov/ebsa/newsroom/tr10-02.html
• Revised Model Notice of Adverse Benefit Determination, available at  http://www.dol.gov/ebsa/IABDModelNotice2.doc
• ACA Compliance Assistance Webcast Series Archive:
  • Part I – http://event.on24.com/r.htm?e=238925&s=1&k=B82F56FA1A2599FC703EF7B0D7E68EAF
  • Part II – http://event.on24.com/r.htm?e=238931&s=1&k=0405A0AFD955D973EE2FA8F900305128
• Public Comments on the Interim Final Rule on Dependent Coverage of Children to Age 26, available at http://www.dol.gov/ebsa/regs/cmt-1210-AB41.html
• Public Comments on the Interim Final Rule on Grandfathered Health Plans, available at http://www.dol.gov/ebsa/regs/cmt-1210-AB42.html

The US Department of Health and Human Services has a web site designed to help employers and employees better understand and manage the ACA: http://www.healthcare.gov/center/index.html. As part of this effort a task force has identified many “wellness” options insurers should consider that won’t require co-pay by employees. It’s a good checklist in general for any wellness program: http://www.healthcare.gov/center/regulations/prevention/taskforce.html. Employer information can be found at http://www.healthcare.gov/foryou/employers/index.html.

Many of the most aggressive aspects of the Health Care Reform Act don’t kick in until 2014. What follows are some of the most important aspects to consider until then.

1. Starting in September 2010 all existing health insurance plans (unless grandfathered) must:
   • Prohibit lifetimes limits
   • Prohibit rescissions
   • Restrict annual limits
   • Include limitations on excessive waiting periods
   • Offer a choice of providers
   • Include a requirement to provide coverage for non-dependent children up to age 26; before 2014, this requirement is limited to non-dependent children who do not have an employer offer of coverage.
   • Plans must pay “first dollar” coverage on all preventative measures and not require cost savings.
2. Employers must provide “reasonable break time” and a private, non-bathroom place to express breast milk during the workday, up until the child’s first birthday. Note: Determine if your current set up will satisfy the rules. If you have less than 50 employees and the accommodation will cause an undue hardship—document it!
3. Small employers (less than 25 employees, averaging less than $50,000 per employee) may be eligible for tax credits.
4. In 2010, small businesses (those with 25 or fewer employees) may be eligible for a tax credit up to 35 percent of employer health insurance costs. The actual amount varies based on employer size and employees’ average income.
5. Required W-2 Reporting – Beginning in 2011, employers will be required to report the value of employees’ health benefits on W-2 forms.
6. 2011 – Requires individual and small group market insurance plans to spend 80% of premium dollars on medical services. Large group plans will have to spend at least 85 percent.
7. 2011 – Employers can apply to receive reimbursement for benefits provided to early retirees age 55-64. $5 billion has been allocated to the program, and it is first-come, first-served.
8. 2011 – No pre-existing condition exclusion for children under 19 (applicable to all enrollees in 2014) is permitted. This is applicable to insured and self-insured plans and grandfathered plans.
9. 2011– No reimbursement of over-the-counter drugs unless prescribed.
10.   2011 – Companies with more than 50 employees must report:
    • Whether they offer their full-time employees and their dependents the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan.
    • Waiting periods.
    • Lowest cost options in the plan.
    • Employer’s share of each option.
    • Number and names of full-time employees receiving coverage.
11.    As of January 1, 2011, employers with calendar plan years starting six months after enactment will, among other requirements, be prohibited from using:
    • Lifetime maximums.
    • Restrictive annual maxis.
    • A bar on the participation of adult children if the children are younger than 26 (with a corresponding tax exclusion for adult children).
    • Pre-existing conditions exclusions for children under 19 years old.
    • Discriminatory eligibility or benefit provisions in insured group health plans (although this does not apply to grandfathered plans).
12.    In 2012, employers must disclose the cost of the benefits they provided in 2011 on the annual W-2 form.
13.    In 2012, covered employers will be required to submit reports on the quality of care in their health plans to the HHS, although this does not apply to grandfathered plans. Plan administrators will be required to provide plan participants with a uniform summary of benefits (based on standards developed by HHS) for all plans by March 23, 2012.
14.    2013 – Caps on the amount that can be directed to flexible spending account (FSAs) will kick in as of     January 1, 2013. FSAs will be capped at $2,500 per employee. The $2,500 limit will be indexed for inflation for years after 2013. Medicare taxes increase as of January 1, 2013. Costs for retiree drug expenses for which subsidies are received cease to be deductible for the plan sponsor and also become taxable on that date.
15.    In 2013, by March 1, employers must notify employees about:
    • State health insurance exchanges.
    • If the employer’s plan meets minimum coverage requirements.
    • Information about subsidies available for exchange based on coverage.

Again, this is geared to giving you a head start. Chances are, your broker and insurance company will be well versed in assisting with these legal requirements.

The DOL has released Interim Final Rule on Coverage of Preventive Services 

Regulation: http://www.ofr.gov/OFRUpload/OFRData/2010-17242_PI.pdf
Fact Sheet: http://www.healthcare.gov/law/about/provisions/services/background.html
Recommended Preventive Services: http://www.healthcare.gov/center/regulations/prevention/recommendations.html

The health care reform law, now generally referred to as the Affordable Care Act, established a program to provide claims reimbursement to group health plans providing coverage to early retirees. If your group health plan does not offer coverage to retirees, the program does not apply to you.

The Early Retiree Reinsurance Program provides $5 billion in temporary funding for the Secretary of Health and Human Services (HHS) to reimburse group health plans for claims paid to provide benefits to early retirees, their spouses or surviving spouses, and dependents. Generally, group health plans are eligible for an 80% reimbursement of claims paid between $15,000 and $90,000. The program began on June 1, 2010, and only claims paid for medical expenses incurred after June 1, 2010 will qualify for the reimbursement. The program is scheduled to expire in 2014, once the health benefit exchanges are open for business.

To file a request for reimbursement, employers and group health plans must submit an application for reimbursement to HHS. Over the weekend, the Secretary of HHS released her first “draft” of the Early Retiree Reinsurance Program application. You can get a copy of it here:

www.hhs.gov/ociio/Documents/application.pdf

HHS expects to make a “final” application available later this month after it has the administrative infrastructure in place to handle the claims submission process. 

Over the weekend, HHS also released a fact sheet and other information about the program on the HHS website. The fact sheet can be found among the Early Retiree Reinsurance Program details here:

www.hhs.gov/ociio/regulations/#early_retiree

We’ll be sure to let you know as soon as the “final” program application form is available. Please contact your LMV attorney if you have questions about the Early Retiree Reinsurance Program or any other facet of the Affordable Care Act at (205) 326.3002.

Article courtesy of Worklaw Network firm Lehr, Middlebrooks & Vreeland, P.C. (www.lehrmiddlebrooks.com).

Here are the rules for employers in black and white, excerpted from the Act.

Sec. 311: Health Coverage Participation Requirements

An employer meets the requirements of this section if such employer does all of the following:

• Offer Of Coverage—The employer offers each employee individual and family coverage under a qualified health benefits plan (or under a current employment-based health plan (within the meaning of section 102(b))) in accordance with section 312.
  
• Contribution Towards Coverage—If an employee accepts such offer of coverage, the employer makes timely contributions towards such coverage in accordance with section 312.
  
• Contribution In Lieu Of Coverage—Beginning with Y2, if an employee declines such offer but otherwise obtains coverage in an Exchange participating health benefits plan (other than by reason of being covered by family coverage as a spouse or dependent of the primary insured), the employer shall make a timely contribution to the Health Insurance Exchange with respect to each such employee in accordance with section 313.
  

Sec. 312: Employer Responsibility to Contribute Towards Employee and Dependent Coverage

• In General—An employer meets the requirements of this section with respect to an employee if the following requirements are met:
  
  • Offering Of Coverage—The employer offers the coverage described in section 311 either through an Exchange-participating health benefits plan or other than through such a plan.
    
  • Employer Required Contribution—The employer timely pays to the issuer of such coverage an amount not less than the employer required contribution specified in subsection (b) for such coverage.
    
  • Provision Of Information—The employer provides the Health Choices Commissioner, the Secretary of Labor, the Secretary of Health and Human Services, and the Secretary of the Treasury, as applicable, with such information as the Commissioner may require to ascertain compliance with the requirements of this section.
    
  • Autoenrollment Of Employees—The employer provides for autoenrollment of the employee in accordance with subsection (c).
    

     

• Reduction Of Employee Premiums Through Minimum Employer Contribution—
  

1. Full-Time Employees—The minimum employer contribution described in this subsection for coverage of a full-time employee (and, if any, the employee’s spouse and qualifying children (as defined in section 152(c) of the Internal Revenue Code of 1986) under a qualified health benefits plan (or current employment-based health plan) is equal to:
   
   1. in case of individual coverage, not less than 72.5 percent of the applicable premium (as defined in section 4980B(f)(4) of such Code, subject to paragraph (2)) of the lowest cost plan offered by the employer that is a qualified health benefits plan (or is such current employment-based health plan); and
      
   2. in the case of family coverage which includes coverage of such spouse and children, not less 65 percent of such applicable premium of such lowest cost plan.
      
2. Applicable Premium For Exchange Coverage.—In this subtitle, the amount of the applicable premium of the lowest cost plan with respect to coverage of an employee under an Exchange-participating health benefits plan is the reference premium amount under section 243(c) for individual coverage (or, if elected, family coverage) for the premium rating area in which the individual or family resides.
   
3. Minimum Employer Contribution For Employees Other Than Full-Time Employees.—In the case of coverage for an employee who is not a full-time employee, the amount of the minimum employer contribution under this subsection shall be a proportion (as determined in accordance with rules of the Health Choices Commissioner, the Secretary of Labor, the Secretary of Health and Human Services, and the Secretary of the Treasury, as applicable) of the minimum employer contribution under this subsection with respect to a full-time employee that reflects the proportion of:
   
   1. the average weekly hours of employment of the employee by the employer, to
      
   2. the minimum weekly hours specified by the Commissioner for an employee to be a full-time employee.
      
4. Salary Reductions Not Treated As Employer Contributions—For purposes of this section, any contribution on behalf of an employee with respect to which there is a corresponding reduction in the compensation of the employee shall not be treated as an amount paid by the employer.
   

    

• Automatic Enrollment For Employer Sponsored Health Benefits—
  

1. In General—The requirement of this subsection with respect to an employer and an employee is that the employer automatically enroll such employee into the employment-based health benefits plan for individual coverage under the plan option with the lowest applicable employee premium.
   
2. Opt-Out—In no case may an employer automatically enroll an employee in a plan under paragraph (1) if such employee makes an affirmative election to opt out of such plan or to elect coverage under an employment-based health benefits plan offered by such employer. An employer shall provide an employee with a 30-day period to make such an affirmative election before the employer may automatically enroll the employee in such a plan.
   
3. Notice Requirements—
   
   1. In General—Each employer described in paragraph (1) who automatically enrolls an employee into a plan as described in such paragraph shall provide the employees, within a reasonable period before the beginning of each plan year (or, in the case of new employees, within a reasonable period before the end of the enrollment period for such a new employee), written notice of the employees’ rights and obligations relating to the automatic enrollment requirement under such paragraph. Such notice must be comprehensive and understood by the average employee to whom the automatic enrollment requirement applies.
      
   2. Inclusion Of Specific Information—The written notice under subparagraph (A) must explain an employee’s right to opt out of being automatically enrolled in a plan and in the case that more than one level of benefits or employee premium level is offered by the employer involved, the notice must explain which level of benefits and employee premium level the employee will be automatically enrolled in the absence of an affirmative election by the employee.
      

Sec. 313. Employer Contributions In Lieu Of Coverage

• In General—A contribution is made in accordance with this section with respect to an employee if such contribution is equal to an amount equal to 8 percent of the average wages paid by the employer during the period of enrollment (determined by taking into account all employees of the employer and in such manner as the Commissioner provides, including rules providing for the appropriate aggregation of related employers). Any such contribution—
  

1. shall be paid to the Health Choices Commissioner for deposit into the Health Insurance Exchange Trust Fund, and
   
2. shall not be applied against the premium of the employee under the Exchange-participating health benefits plan in which the employee is enrolled.
   

    

• Special Rules For Small Employers—
  

1. In General—In the case of any employer who is a small employer for any calendar year, subsection (a) shall be applied by substituting the applicable percentage determined in accordance with the following table for “8 percent”:
   

1. Small Employer—For purposes of this subsection, the term “small employer” means any employer for any calendar year if the annual payroll of such employer for the preceding calendar year does not exceed $400,000.
   
2. Annual Payroll—For purposes of this paragraph, the term “annual payroll” means, with respect to any employer for any calendar year, the aggregate wages paid by the employer during such calendar year.
   
3. Aggregation Rules—Related employers and predecessors shall be treated as a single employer for purposes of this subsection.