The Obama administration caught the U.S. business community by surprise when it announced a one-year delay, until Jan. 1, 2015, in the Patient Protection and Affordable Care Act (PPACA or ACA) mandate that employers with 50 or more full-time-equivalent employees provide health care coverage to their full-time employees (those working on average 30 or more hours per week) or pay steep penalties.
The announcement, by Mark J. Mazur, the assistant secretary for tax policy at the U.S. Treasury Department, was made via the Treasury Notes blog late in the day on July 2, 2013. Mazur said the mandate's delay is intended to "provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees." He added: "During this 2014 transition period we strongly encourage employers to maintain or expand health coverage. Also, our actions today do not affect employees’ access to the premium tax credits available under the ACA (nor any other provision of the ACA)."
The postponement of the employer “shared responsibility” coverage mandate—sometimes referred to as “pay or play”—is linked to a delay (announced at the same time) until 2015 in implementing two PPACA penalty-related information-reporting provisions: Section 6055, which requires reporting by insurers, self-insuring employers and other parties that provide health coverage; and Section 6056, which requires reporting by certain employers concerning the health coverage they offer to their full-time employees.
According to the announcement: “We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under Section 4980H) for 2014. Accordingly, we are extending this transition relief to the employer shared responsibility payments. These payments will not apply for 2014. Any employer shared responsibility payments will not apply until 2015.”
In other words, organizations will not face penalties for another year over employees who receive premium tax credits to purchase coverage on a government-run exchange.
However, “Many ACA provisions are unaffected by the delay, and employers must continue to implement and comply with them,” advised an analysis by consultancy PricewaterhouseCoopers. “New individual and group health plan requirements taking effect for 2014 plan years include a ban on annual dollar limits on essential health benefits, a 90-day limit on eligibility waiting periods, new out-of-pocket limit maximums, the elimination of preexisting conditions exclusions for adults, and coverage of clinical trial participant costs.” New fees and assessments—including the 'PCORI' and transitional reinsurance fees and a health insurer tax—“remain undisturbed by the delay.”
Also remaining in place, for instance, are the reform act's requirement that most employer-provided health care include coverage for recommended preventive care—including contraceptive services for women with no cost-sharing—and the requirement for employers subject to the Fair Labor Standards Act to provide written notices about government-run exchanges to each of their employees and to all new hires by Oct. 1, 2013.
On the other hand, “Employers who were planning to expand coverage to new classes of employees or dependents, or change cost-sharing structures to comply with affordability requirements, can postpone implementation of those changes for up to a year,” according to an alert from law firm Nixon Peabody LLP. “Employers may wish to voluntarily comply with the new IRS reporting requirements beginning in 2014 in order to start data collection, and to develop and test IT systems before penalties can be imposed for reporting errors.”
United Benefit Advisors has posted a listing of what's been delayed, what remains required in terms of plan coverage, and other PPACA obligations employers still must meet.
Proposed rules implementing the delay in the shared responsibility and information-reporting provisions will be forthcoming, the Treasury's announcement said.
No Free Pass
“The delay will give employers more time to cope with some of the requirements, but they know it’s no free pass,” according to an alert by HR consultancy Mercer. “In the short term, new fees, plan design changes and the expectation of additional enrollment will add an estimated 2–3 percent or more to health plan cost in 2014, even if employers table plans to extend coverage to all employees working 30 or more hours per week.”
Moreover, “Employers must still prepare to address employee confusion about their need to have health coverage and their options for coverage—both from their employer and the public exchanges,” advised Mercer.
Time to Review and Adjust Coverage
“This is terrific news for large employers all across the country,” commented Helen Darling, president and CEO of the National Business Group on Health (NBGH), an employers group, in a media release. “The one-year delay will give employers much-needed additional time to make any necessary changes to their health care benefit programs and any other decisions to meet the law’s requirements. It also gives employers relief from yet to be fully worked out reporting requirements and the administrative burdens of complying with a complex set of rules.”
Steve Wojcik, vice president of public policy at the NBGH, questioned whether delays to other provisions in the PPACA might loom. “Most large employers are well into finalizing benefit changes and plans for 2014,” he said. “It may mean a temporary pause for some; for others it may mean no change in their plans for 2014. But it's definitely a reprieve from reporting requirements and the dollars and staff time that would have been diverted to compliance with the mandate, though the law certainly has other components that have added to plan costs and administrative burdens already.”
Darling advised HR and benefit managers to take time now to review any benefit-program changes they were contemplating for next year and to determine whether further modifications are warranted.
“The delay will most likely have the greatest effect on employers in industries with large numbers of part-time workers and with workforces whose hours fluctuate, including retail, hospitality, entertainment. agriculture and restaurants," Darling observed. "These employers were gearing up for hard decisions about not only health benefits but also staffing. Now they will have more time to make those decisions.”
Coverage Remains Vital
"All of the reasons employers now have for offering coverage to their employees—significant tax subsidies, recruitment and retention of employees, and increased productivity and decreased absenteeism when employees are healthy—will continue to exist without the mandate penalty," said Timothy Jost, a professor at the Washington and Lee University School of Law, in a commentary on the Health Affairs Blog.
"It is to be hoped, moreover, that employers who have been claiming that they have to reduce their employees’ hours of work to below 30 to avoid the penalties will restore the lost hours, and small employers fearful of growing over the 50 [full-time equivalent] threshold will focus on growing their businesses rather than worrying about the ACA," Jost added.
"We applaud the Obama administration's decision to delay until 2015 employers' reporting requirements and potential employer penalty payments under the Affordable Care Act," said James A. Klein, president of the American Benefits Council, an employers group, in a media statement. "This provides vital breathing room to implement the law in a more thoughtful and administrable way."
A critical view of health care reform was reiterated by the National Federation of Independent Business, a small-business lobby long opposed to the reform act. “Temporary relief is small consolation; we need a permanent fix to this provision to provide long-term relief for small employers,” Amanda Austin, the group's director of federal public policy, said in a statement.
"Play or Pay" Penalties Delayed
Starting in 2015, employers with 50 or more full-time employees or equivalents that do not offer coverage to their full-time employees face a penalty of $2,000 times the total number of full-time employees if at least one full-time employee receives a premium tax credit/subsidy to purchase coverage through a government-run health insurance exchange established under the PPACA.
Full-time employees are those who average 30 or more hours of work per week.
Employees with household income between 100 percent and 400 percent of the federal poverty level are eligible for tax credits for exchange coverage if they do not have access to affordable employer-sponsored coverage that is of at least a minimum value.
If employers with 50 or more full-time employees or equivalents do offer coverage to their full-time employees but the coverage is “unaffordable” (9.5 percent of income or higher) to certain employees or does not provide “minimum value” (the plan’s share of total cost of benefits under the plan is less than 60 percent), the employers face a penalty of $3,000 times the number of full-time employees receiving a premium tax credit/subsidy for exchange coverage (not to exceed $2,000 times the total number of full-time employees).
“The administration did not delay the many new requirements facing employers who choose to offer health insurance in the small group market—employers with less than 50 workers,” noted Robert Laszewski, president of Health Policy and Strategy Associates, in a post on The Health Care Blog. “While small employers are not required to offer coverage, if they do they come under that large number of new essential health benefit mandates and group rating rules that won’t apply to large employers.”
He added, “While the new health law enabled small groups to benefit from ‘grandfather’ rules by being able to keep their current benefit package, it has been estimated that only about 15 percent of employers will still be grandfathered come 2014 because of how stringent the administration made those rules.”
Impact on Subsidies
Without the reporting requirements of the employer mandate in 2014, the government-run exchanges and the IRS will not be able to verify, in most instances, whether employer-provided heatlh coverage is deemed "unaffordable" (costing 9.5 percent or more of a worker's household income) and thus whether employees are eligible for tax credits or subsidies when purchasing coverage on a government-run exchange. "If the IRS doesn't have information about the plans large employers offer, it will be very hard to verify that. It will be an honor system," Nicholas Bagley, a law professor at the University of Michigan, told Reuters.
On July 5, 2013, HHS issued a wide-ranging final rule (to be published in the Federal Register on July 15) that allows the federal government and state-run exchanges to rely heavily on self-reported information by those seeking tax credits/subsidies for policies purchased through an exchange, while auditing a sample of applications for accuracy (at least until 2015, when stronger verification systems may be in place). Along these lines, the final rule states that:
"If the Exchange…does not have any available electronic data regarding the employment of an applicant and the members of his or her household or an applicant’s attestation is not reasonably compatible with any available data… we proposed that the Exchange would place the applicant into a pool of applicants from which it would select a statistically significant sample of applicants, from whose employers the Exchange would request information regarding enrollment in an eligible employer-sponsored plan ...
"For those individuals who are not part of this sample, the Exchange may accept the attestation of projected annual household income without further verification for purposes of the Exchange’s eligibility determination. We expect that any Exchange that exercises this option will monitor the process closely and adjust the targeting and size of the sampled population as needed to ensure an effective verification process."