Patient Protection and Affordable Care Act _Large Employer Compliance

PATIENT PROTECTION AND
AFFORDABLE CARE ACT COMPLIANCE
FOR LARGE EMPLOYERS
Pilot Healthcare Strategies
http://www.pilothealthstrategies.com/
fpilot@pilothealthstrategies.com

The purpose of this presentation is to
provide a general overview of Patient
Protection and Affordable Care Act
Employer Shared Responsibility for
large employers (those employing 50 or
more full time or full time equivalents).
The application of these requirements
will vary from one employer to another
based on their specific circumstances.
For that reason, this presentation is not
intended to provide comprehensive
guidance for all situations; qualified
assistance should be consulted.
Copyright (c) 2015 Pilot Healthcare Strategies

THE SHARED RESPONSIBILITY
“EMPLOYER MANDATE” TO PROVIDE
HEALTH COVERAGE

Policy intent
The policy intent of the Employer Shared Responsibility provisions of
the Affordable Care Act is to preserve employment-based health
coverage that covers the majority of working age Americans under age
65.

Affected employers
All large employers are subject to the Employer Shared Responsibility
provisions, including for-profit, non-profit, and government entities.
Authority: Internal Revenue Service, Questions and Answers on Employer Shared Responsibility Provisions Under the
Affordable Care Act, Question No. 7

What defines a large employer?
An employer that employed an average of at least 50 full-time employees
(including full-time equivalent employees) on business days during the
preceding calendar year.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(4)

Definition of full time employees
With respect to a calendar month, an employee who is employed an
average of at least 30 hours of service per week with an employer.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(21).

How to determine large employer status for purposes
of Employer Shared Responsibility requirements
Total the number of full time employees including any seasonal workers for
each calendar month in the preceding calendar year. Divide by 12 and round to
next lowest whole number.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–2(b)
NOTE: Part time employees must be included in calculation by adding the
number of hours of service for a calendar month for part time staff and dividing
by 120, rounding to the nearest one hundredth.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–2(c)
Seasonal employee exception: If the sum of an employer’s full-time
employees exceeds 50 for 120 days or less during the preceding calendar year,
and the employees in excess of 50 who were employed during that period of no
more than 120 days are seasonal workers, the employer is not considered to
employ more than 50 full time employees.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–2(b)(2)

Health coverage offer requirements
2015
Employers that employed at least 100 full-time employees (or a
combination of full-time and part-time employees that equals at
least 100) during the previous calendar year (i.e. 2014) must
offer qualifying health coverage to at least 70 percent of full time
employees and dependents.
Authority: Shared Responsibility for Employers Regarding Health Coverage, Transition Relief
and Interim Guidance, (Preamble) XV(D)( 7). 8575 Federal Register, Vol. 79, No. 29, February
12, 2014.
NOTE: Employers of 50-99 employees not required to offer
coverage for health plans effective in 2015.
Authority: Shared Responsibility for Employers Regarding Health Coverage, Transition
Relief and Interim Guidance (Preamble) XV.D.6. 8574 Federal Register, Vol. 79, No. 29,
February 12, 2014.

Health coverage offer requirements
2016
All employers that employed at least 50 full-time employees (or a
combination of full-time and part-time employees that equals at least 50
during the previous calendar year – i.e. 2015) must offer qualifying
health coverage to all but five percent (or, if greater, five) of full-time
employees and their dependents.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–4(a)

Dependent coverage
• Dependents are natural children (not step children and foster children) under
age 26.
• Not the spouse of an employee.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(12)
Note on dependent coverage: Employers not offering dependent coverage
must have “taken steps” during plan years 2014 and 2015 to do so.
Authority: Shared Responsibility for Employers Regarding Health Coverage, Transition Relief and Interim Guidance
(Preamble) XV.D.5. 8573Federal Register, Vol. 79, No. 29, February 12, 2014.

What is offer of qualifying health coverage?
An employer-sponsored plan that provides minimum essential coverage:
• Coverage must provide minimum value: employee’s share of the total allowed costs of
benefits provided under the plan is less than 40 percent of such costs.
• The employee’s required premium contribution for self only coverage does not exceed 9.56
percent of the employee’s household income.
Authority: 26 U.S. Code § 4980H; 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(12), § 54.4980H–4; IRS
Rev. Proc. Notice 2014-37
• Coverage provided through Code § 125 (Cafeteria) plans, employer payment plans, health
FSAs, and HRAs are employer-sponsored plans and provide minimum essential coverage
unless the coverage consists solely of excepted benefits.
• Amounts newly made available for the current plan year under an HRA that is integrated with
an eligible employer-sponsored plan and that an employee may use to pay premiums are
counted for purposes of determining affordability of an eligible employer-sponsored plan.
Authority: Internal Revenue Service Notice 2013-54, Application of Market Reform and other Provisions of the
Affordable Care Act to HRAs, Health FSAs, and Certain other Employer Healthcare Arrangements
Pending issuance of final regulations, employer group health plans that do not include coverage
for physician services and hospitalization fail to provide minimum value. Employers offering such
plans may not advise employees that such plans preclude eligibility for premium tax credit for
exchange qualified health plan.
Authority: IRS Notice 2014-69.

Maximum waiting period/Automatic enrollment
Waiting period limit
• A group health plan shall not apply a waiting period that exceeds 90 days
for those eligible to enroll under the terms of the plan.
Authority: 26 CFR (Code of Federal Regulations) § 54.9815–2708
Automatic enrollment (for employers of more than 200)
• Section 1511 of the Affordable Care Act requires employers of more than 200 full-time
employees to automatically enroll new full-time employees in one of the employer’s health
benefits plans (subject to waiting period) and to continue the enrollment of current employees
in a health benefits plan offered by an employer. In addition, employers must provide
adequate notice and the opportunity for an employee to opt out of any coverage in which the
employee was automatically enrolled.
• Final regulations implementing the requirement have not been issued. Department of Labor
states until final regulations are issued and become applicable, employers are not required to
comply with Section 1511.
Authority: Department of Labor Technical Release No. 2012-01.

What is a plan year?
• 12 consecutive months, unless a short plan year of less than twelve consecutive
months is permitted for a valid business purpose. A plan year is permitted to begin on
any day of a year and must end on the preceding day in the immediately following year.
• Calendar year plan year: period of 12 consecutive months beginning on January 1
and ending on December 31 of the same calendar year.
Once established, a plan year is effective for the first plan year and for all subsequent plan
years, unless changed, provided that such change will only be recognized if made for a valid
business purpose. A change in the plan year is not permitted if a principal purpose of the
change in plan year is to circumvent large employer regulations.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(35)

Non-calendar year plan compliance
If an employer offers a non-calendar year plan that was in effect as of
December 27, 2012 and not changed, it will be compliant with mandate to offer
qualifying coverage in 2015 provided:
• Those employees eligible as of February 9, 2014 are offered qualifying
coverage by the first day of the 2015 plan year. (Example: if 2015 plan year
coverage begins April 1, 2015, employer is considered compliant for months
preceding April).
• During an open enrollment period ending before February 9, 2014:
• Employer provided coverage to at least 25 percent of all employees or offered
coverage to at least one third of employees, or;
• Provided coverage to at least one third of full time employees or offered coverage to
at least one half of full time staff.
Authority: Shared Responsibility for Employers Regarding Health Coverage, Transition Relief and
Interim Guidance (Preamble) XV.D.1 8570 Federal Register, Vol. 79, No. 29, February 12, 2014.

IRS REPORTING
REQUIREMENTS AND EXCISE
TAX PENALTIES
I

Compliance with Employer Shared
Responsibility Mandate
• Employer compliance with Shared Responsibility Mandate determined by
reporting to IRS:
• By employers via annual information return reporting full time employees eligible for
mandatory offer of coverage and coverage offered.
• By state health benefit exchanges reporting employees who obtained advance tax
credit subsidy for an exchange plan.
• 2015 is first year reporting requirements effective.
• 2015 returns must be filed NLT February 29, 2016, or March 31, 2016 if filed
electronically.
Source: Internal Revenue Service, Questions and Answers on Reporting of Offers of Health Insurance Coverage by
Employers (Section 6056), Question 17.

Compliance with Employer Shared Responsibility
Mandate
Two measurement methods that can be used by employers
to develop IRS information return data:
• Monthly method
• Elegant method to determine f/t employees subject to mandatory offer of
qualifying coverage.
• “Look back” measurement method
• Provides more compliance flexibility for employers with significant
numbers of part time, seasonal, variable hour employees.
• Highly complex; significant administrative burden must be taken into
account.

Monthly measurement method
• Full time status determined by counting an employee’s hours of service for each calendar
month.
• Not required to offer qualifying coverage for first three calendar months, but if employee must
be offered coverage no later than the first day of the first calendar month immediately
following the three month period if the employee is still employed on that day.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(21)(iii), § 54.4980H–3(c)
NOTE: 130 hours of service in a calendar month is treated as the monthly equivalent of at least 30
hours of service per week, if this equivalency rule applied on a reasonable and consistent basis.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(21)(ii)
• Optional weekly rule: Full-time employee status for calendar months is based on hours of service
over four weekly periods and for certain other calendar months is based on hours of service over
five weekly periods. With respect to a month with four weekly periods, an employee with at least 120
hours of service is a full-time employee, and with respect to a month with five weekly periods, an
employee with at least 150 hours of service is a full-time employee
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(21)(iii), § 54.4980H–3(c)(3)

Look back measurement method
• Used for ongoing employees
• New employees reasonably expected to be a full-time must be offered
coverage NLT first day of the month immediately following the conclusion
of the employee’s initial three full calendar months of employment.
• Full time status of an employee determined by measuring hours of
service over measurement period selected by employer of at least 3 but
not more than 12 months.
• Those employed on average at least 30 hours of service per week during
the measurement period must be treated as full-time employees for at
least 6 months and not period shorter than measurement period used.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–3(d)

Reporting requirements
Employers must file an information return with the IRS and furnish a related statement to its full-time
employees for each calendar year using Form 1095–C or another form the IRS designates, and a
transmittal form using Form 1094–C or another form the IRS designates. Information returns must
include the following information:
• Name, address, and employer identification number of the applicable large employer and contact
information
• The calendar year for which the information is reported
• A certification as to whether the employer offered to its full-time employees (and their dependents)
the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan,
by calendar month
• The months during the calendar year for which minimum essential coverage under the plan was
available
• Each full-time employee’s share of the lowest cost monthly premium (self only) for coverage
providing minimum value offered to that full-time employee under an eligible employer-sponsored
plan, by calendar month
• The number of full-time employees for each month during the calendar year
• The name, address, and taxpayer identification number of each full-time employee during the
calendar year and the months, if any, during which the employee was covered under the plan
• Any other information specified in forms, instructions, or published guidance
Authority: 26 CFR (Code of Federal Regulations) 301.6056–1(d)

Reporting requirements, cont.
A separate section 6056 transmittal (Form 1094-C) must be filed with any Forms 1095-C
filed by each employer. If more than one section 6056 transmittal is being filed, one of
those transmittals must be a section 6056 authoritative transmittal reporting aggregate
employer-level data for all full-time employees in accordance with forms and instructions.
Source: Internal Revenue Service, Questions and Answers on Reporting of Offers of Health Insurance
Coverage by Employers (Section 6056), Question 12.

Alternative reporting options
Certification of qualifying offer of health coverage
The employer:
• Certifies on section 6056 transmittal form (Form 1094-C) that it made a qualifying offer to one or
more full-time employees for all months during the year for which an employee was a full-time
employee and which are not within periods where offer of coverage not required (such as during first
three months of employment) minimum essential coverage providing minimum value at cost for
employee-only coverage not exceeding 9.56 percent of the mainland single federal poverty line, and
that includes an offer of minimum essential coverage to the employees’ spouses and dependents.
• Provides on Form 1095–C or other form as designated by the IRS information on each full-time
employee to whom coverage offered for all twelve months of the applicable calendar year and a
statement to each full-time employee to whom coverage was offered.
• Files information returns and furnishes employee statements with respect to all other fulltime
employees
Authority: 26 CFR (Code of Federal Regulations) 301.6056–1(j)
FOR 2015 ONLY: An employer may certify that it has made a qualifying offer as described above to at least 95 percent
of its full-time employees and to their spouses and dependents. In lieu of providing a Form 1095–C (or another form the
IRS designates) to its employees, satisfy its section 6056 furnishing requirement with respect to all of its full-time
employees by furnishing a statement to each of its fulltime employees by January 31, 2016.
Authority: Information Reporting by Applicable Large Employers on Health Insurance Coverage Offered Under
Employer- Sponsored Plans. (Preamble) X(A)(2). 13241 Federal Register Vol. 79, No. 46, March 10, 2014

Abbreviated reporting option
Option to report without separate identification of full-time employees for
those offering coverage to 98 percent of full time workforce
An applicable large employer member that otherwise meets its reporting obligations not
required to identify on its section 6056 return whether a particular employee is a full-time
employee for one or more calendar months of the reporting year or report the total
number of its full-time employees for the reporting year if it certifies that it offered
minimum essential coverage providing minimum value that was affordable to at least 98
percent of the employees (and their dependents) regardless of whether the employee is a
full-time employee during a calendar month during the year).
Authority: 26 CFR (Code of Federal Regulations) 301.6056–1(j)(2)

Penalties
Failure to provide full time employees and dependents
opportunity to enroll in qualifying health coverage
Triggering event:
• Employer member has received a Section 1411 Certification relative to at least one full
time employee having enrolled in a state health benefit exchange plan and received
premium tax credit or cost sharing reduction for a calendar month.
Penalty amount:
• For the calendar month, the penalty is equal to 1/12 of $2,000, adjusted for inflation
times the number of full-time employees, less 30.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1(a)(41), § 54.4980H–4(e)
2015 only: Penalty amount times the number of full time employees, less 80.
Authority: Shared Responsibility for Employers Regarding Health Coverage, Transition
Relief and Interim Guidance (Preamble) XV.D.7(b). 8576 Federal Register, Vol. 79, No.
29, February 12, 2014.

Penalties, cont.
Failure to offer coverage that provides minimum value or is
affordable
Full time employees do not have opportunity to decline to enroll in coverage that does not provide
minimum value or requires an employee contribution for any calendar month of more than 9.56
percent of a monthly amount determined as the federal poverty line for a single individual for the
applicable calendar year, divided by 12.
Triggering event:
• Employer member has received a Section 1411 Certification relative to at least one full time
employee having enrolled in a state health benefit exchange plan and received premium tax credit
or cost sharing reduction for a calendar month.
Penalty amount:
• For the calendar month, the penalty is equal to 1/12 of $3,000 adjusted for inflation times the
number of full-time employees, but not more than aggregate amount of penalty for failure to offer
coverage to full time employees and dependents.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–1 (a)(42)

Penalties, cont.
Optional “safe harbors” to avoid penalty for failure to
offer coverage that provides minimum value or is
affordable to employee
(1) Form W–2 wages
(2) Rate of pay
(3) Federal poverty line
May be used only if full-time employees and dependents afforded opportunity to enroll in
coverage under employer-sponsored plan that provides minimum value with respect to
the self only coverage offered to the employee. An employer may choose to use one or
more of these safe harbors for all of its employees or for any reasonable category of
employees, provided it does so on a uniform and consistent basis for all employees in a
category.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–5(e)(2)(i)

Penalties, cont.
Form W–2 safe harbor
Can be used if employee’s required contribution for the calendar year for the employer’s
lowest cost self only coverage that provides minimum value during the entire calendar
year (excluding COBRA or other continuation coverage except with respect to an active
employee eligible for continuation coverage) does not exceed 9.5 percent of that
employee’s Form W–2 wages. If coverage was not for an entire calendar year, the Form
W–2 safe harbor is applied by adjusting the Form W–2 wages to reflect the period for
which coverage was offered.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–5(e)(2)(ii)

Penalties, cont.
Rate of pay safe harbor
• Hourly employees: The employee’s required contribution for the calendar month for
the applicable large employer member’s lowest cost self-only coverage that provides
minimum value does not exceed 9.5 percent of an amount equal to 130 hours
multiplied by the lower of the employee’s hourly rate of pay as of the first day of the
coverage period or the employee’s lowest hourly rate of pay during the calendar month.
• Non-hourly employees: The employee’s required contribution for the calendar month
for the applicable large employer member’s lowest cost self-only coverage that
provides minimum value does not exceed 9.5 percent of the employee’s monthly
salary, as of the first day of the coverage period (instead of 130 multiplied by the hourly
rate of pay).
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–5(e)(2)(iii)

Penalties, cont.
Federal poverty line safe harbor
• Employer satisfies the federal poverty line safe harbor with respect to an employee for
a calendar month if the employee’s required contribution for the calendar month for the
lowest cost self-only coverage that provides minimum value does not exceed 9.5
percent of a monthly amount determined as the federal poverty line for the state in
which the employee is employed for a single individual for the applicable calendar year,
divided by 12.
• If coverage offered least one day during a calendar month, the entire calendar month is
counted both for purposes of determining the monthly amount for the calendar month
and for determining the employee’s share of the premium for the calendar month.
Authority: 26 CFR (Code of Federal Regulations) § 54.4980H–5(e)(2)(iv)

Evidentiary standard for penalty assessment
Whether an employee has an effective opportunity to enroll or to decline to enroll is
determined based on all the relevant facts and circumstances including:
• Adequacy of notice of the availability of the offer of coverage
• The period of time during which acceptance of the offer of coverage may be made
• Any other conditions on the offer.

Caveats and cautionary notes
ERISA Section 510 liability
Large employers that reduce employees’ average weekly hours to less than 30 in order
to avoid having them counted as full time employees could potentially face legal
exposure under Section 510 of the Employee Retirement Income Security Act of 1974
(ERISA), which bars employers from firing, disciplining or discriminating against
employees for the purpose of interfering with their access to employee benefit plans.
Consult qualified legal counsel before acting.

Relationship with state exchange marketplace
Section 18B of the Fair Labor Standards Act (as added by section 1512 of the Affordable
Care Act) requires employers provide each employee at the time of hiring a written notice
that:
• Informs the employee of the existence of the state exchange including a description of
the services provided how to contact the exchange to request assistance;
• If the employer plan's share of the total allowed costs of benefits provided under the
plan is less than 60 percent of such costs, advises the employee may be eligible for a
premium tax credit for the purchase of a qualified health plan through the exchange;
and
• If the employee purchases a qualified health plan through the exchange, the employee
may lose the employer contribution (if any) to any health benefits plan offered by the
employer and that all or a portion of such contribution may be excludable from income
for Federal income tax purposes.
Authority: Department of Labor, Technical Release No. 2013-02

Relationship with state exchange marketplace
Employers prohibited from:
• Reimbursing employees to cover individual policy premiums. If an employer uses an
arrangement that provides cash reimbursement for the purchase of an individual
market policy, the employer’s payment arrangement is considered part of a plan, fund,
or other arrangement established or maintained for the purpose of providing medical
care to employees, without regard to whether the employer treats the money as pre-tax
or post-tax to the employee.
• Establishing health reimbursement account (HRAs) that enable employees to purchase
coverage and access advance premium tax credits for individual plans sold in the state
health benefit exchange marketplace. HRAs are group (not individual) health plans and
therefore employees participating in them are ineligible for the credits or cost-sharing
reductions.
• Offering cash to an employee in poor health in order to steer the employee away from
a large employer’s group health plan to, for example, an exchange plan. Such
arrangements violate Health Insurance Portability and Accountability Act (HIPAA)
provisions barring discrimination based on one or more health factors.
Authority: Department of Labor, FAQs about Affordable Care Act Implementation (Part XXII) Compliance of Premium
Reimbursement Arrangements. November 6, 2014.

Workplace wellness programs
Group health plans may include wellness programs to promote health and prevent disease.
They cannot discriminate against participants based on a health factor and must be offered to
similarly situated individuals.
Two primary types of wellness programs:
• Participatory wellness programs such as those that reimburse employees for the cost of
membership in a fitness center; reward to employees for attending a monthly, no-cost health
education seminar; or that provides a reward to employees who complete a health risk
assessment without requiring them to take further action.
• Health-contingent wellness programs which generally require individuals to meet a specific
standard related to their health to obtain a reward such as specified cholesterol level or
weight. Permissible rewards under a health-contingent wellness program offered in
connection with a group health plan range from 20 percent to 30 percent of the cost of
coverage and a maximum of 50 percent for wellness programs designed to prevent or
reduce tobacco use.
Authority: Incentives for Nondiscriminatory Wellness Programs in Group Health Plans. 33158 Federal
Register Vol. 78, No. 106, June 3, 2013.

• Recent litigation by Equal Employment Opportunity Commission (EEOC) alleges some
wellness programs are being implemented as compulsory for employees and penalize
employees who decline to participate and thus violate the Americans With Disabilities
Act and other federal employment discrimination laws. See EEOC v. Honeywell
International, Inc. Case No. 14-CV-4517, 2014 U.S. Dist. LEXIS 157945, (D. Minn. Nov.
6, 2014)
• The EEOC plans to promulgate rules in February 2015 addressing aspects of wellness
programs that may be subject to the ADA's nondiscrimination provisions.

Planning ahead: Excise tax on high value plans
• Beginning in 2018, employer sponsored plans costing in excess of $10,200 for self-only
coverage and $27,500 for other than self-only coverage are subject to a 40 percent
excise tax.
• These amounts are adjustable upward by the percentage the Blue Cross/Blue Shield
standard benefit option under the Federal Employees Health Benefits Plan for plan
year 2018 exceeds 55 percent the 2010 cost of the plan.
Authority: Section 9001, Patient Protection and Affordable Care Act of 2010.

Patient Protection and Affordable Care Act _Large Employer Compliance

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