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PPACA Update: How The Affordable Care Act Will Affect Employers
- 1. PPACA Update: How TheAffordable Care Act Will Affect Employers Seth Perretta Principal, Co-Chair of the Health Practice Group Groom Law Group April 24, 2014
- 2. We will cover... • Status of the individual mandate • Employer mandate or “pay or play” • Brief refresher on “pay” or “play” choice • How to determine whether you are subject to the employer mandate • Overview of the recently issued final regula@ons • Treatment of various types of workers • Seasonal employees • Short-‐term, non-‐seasonal hires • State of public and private exchanges 2
- 3. • Originally scheduled to take effect on January 1, 2014 • Now scheduled to take effect on January 1, 2015 • Generally requires that all nonexempt individuals be enrolled in “minimum essen@al coverage” or pay a tax penalty Individual Mandate
- 4. • Originally effec@ve for 2014, but delayed for one year • Now scheduled to take effect on January 1, 2015 • Addi@onal delay for: • Qualifying sponsors of non-‐calendar year plans • Qualifying employers with 50-‐99 full-‐@me (FTs) and full-‐@me equivalent (FTE) employees • Limited transi@on relief for the “A-‐Penalty” “Pay or Play”
- 5. • Two separate penal@es: • 4980H(a) or “A-‐Penalty” • 4980H(b) or “B-‐Penalty” “Pay or Play”
- 6. • A-‐Penalty (4980H(a)) • Some@mes referred to as the “offering requirement” • General rule = An employer must offer “minimum essen@al coverage” (MEC) to 95% of its 4980H-‐defined full-‐@me employees “(and their dependents)” or risk a penalty equal to (i) $2,000, mul@plied by (ii) the number of full-‐@me employees minus 30 • ** Certain transi@on relief through close of 2015 plan year was provided ** “Pay or Play”
- 7. Birth Child Up to Age 26 Adopted Child Up to Age 26 Step-‐ children Foster Children All Children age 26+ 4980H “Dependents” Yes NO Spouse ** Note: Special 2015 TransiUon Relief “Pay or Play”
- 8. • B-‐Penalty (4980H(b)) • General rule = Even if an employer sa@sfies the offering requirement (i.e., avoids the A-‐Penalty), if the employer fails to offer affordable and minimum value coverage to a full-‐@me employee, it can risk a B-‐Penalty generally equal to $3,000 per year for that employee “Pay or Play”
- 9. • 4980H Applies to “applicable large employers” or ALEs • Who is an ALE? • An employer that employed on average at least 50 full-‐@me employees (FTs) or full-‐ @me equivalents (FTEs) during the preceding calendar year • Note: Special seasonal worker excep@on • ALSO, special transi@on rule for 2015 • Things to keep in mind: • ALE status is determined using IRS 80% controlled group rules • But once ALE status is determined, each ALE member gets its own “pay or play” decision Subject Employers: ALEs
- 10. • To determine ALE status, you need to take the following steps: 1. For each calendar month last year: • Determine the client employer’s number of full-‐@me employees across its controlled group • Determine the client employer’s number of full-‐@me equivalent employees 2. Add up the number of FTs and FTEs for all 12 months of last year and divide by 12 Subject Employers: ALEs
- 11. Preceding Calendar Year Jan Feb Mar Apr May Jun July Aug Sept Oct Nov Dec Total # Full-‐Time Employees 34 42 53 51 37 39 41 44 50 51 48 46 N/A # FT Equivalents 12.6 12.9 10.3 10.5 14.2 12.3 9.3 10.0 10.3 13.2 12.8 13.2 N/A Total Number 46.6 54.9 63.3 61.5 51.2 51.3 50.3 54.0 60.3 64.3 60.8 59.2 677.7 # of Full-‐Time Employees/Equivalents During the Preceding Calendar Year: 677.7 divided by 12 = 56.48 Subject Employers: ALEs
- 12. • Full-‐Time Employee (FT) • Defini@on: Worked on average 120 hours during the calendar month at issue • NOTE: This is NOT the same defini@on of FT that applies in second step of analysis, i.e., when determining TO WHOM qualifying coverage must be provided. (That defini@on uses 30 hours/wk or 130 hours/month). Subject Employers: ALEs
- 13. • Full-‐Time Equivalent Employee (FTE) • For each calendar month in the preceding calendar year, add up all hours worked by non-‐FTs (up to a maximum of 120 hours per employee) and divide by 120. Subject Employers: ALEs
- 14. • “Hour of service” includes: • Hours Worked – Each hour for which the employee is paid, or en@tled to payment, “for the performance of du@es;” AND • Paid-‐Time Off – Each hour for which the employee is paid, or en@tled to payment, for the period of @me due to vaca@on, holiday, illness, incapacity (including disability), layoff, jury duty, military duty, or leave of absence • Notes: • ALL paid leave gets counted • Final regs include rules for non-‐hourly and commissions-‐based employees • Final regula@ons include certain methods to credit hours (i.e., actual count, days-‐worked equivalency, weeks-‐worked equivalency) Subject Employers: ALEs
- 15. • For employers with 50-‐99 full-‐@me employees (FTs) or full-‐ @me equivalent (FTEs), the en@re mandate may be delayed, if certain criteria are sa@sfied • For employers that can fit within the transi@on relief, they will not be subject to the A-‐Penalty or the B-‐Penalty • BUT, numerous requirements apply in order to qualify for the delay, so be careful!! What Was Delayed?
- 16. • To qualify for the 50-‐99 FT/FTE delay, what requirements apply? 1. From 2/9/14 through 12/31/14, the employer CANNOT reduce the size of its workforce or the overall hours of service of its employees to get below the 99-‐count threshold • Unless for business reasons 2. During what is called the “coverage maintenance period,” the employer CANNOT eliminate or materially reduce the health coverage, if any, it offered as of 2/9/14 3. The employer must cer@fy on a prescribed form that it meets these requirements What Was Delayed?
- 17. • What else was delayed? Nothing… • But a host of addi@onal transi@onal rules were provided for 2015 (which is sort of like a delay) What Was Delayed?
- 18. • Fiscal plan year transi@on relief • Shorter measurement period permined for use with 2015 stability period • Shorter period for determining ALE status for 2015 • Offer of coverage for January 2015 can be @ed to first payroll period commencing in 2015 • Offer of coverage for dependents • Special A-‐Penalty transi@on relief TransiUon Rules
- 19. • Special A-‐Penalty transiUon relief • What does the relief provide? • So long as the ALE member offers MEC to at least 70% of its full-‐@me employees (and children, as required under the transi@on relief), then no A-‐Penalty applies – • Through 12/31/15 for calendar year plans • Through close of 2015 plan year for non-‐calendar year plans • Also, the A-‐Penalty is reduced by the ALE’s allocable share of 80 full-‐@me employees rather than just 30 TransiUon Rules
- 20. • Special A-‐Penalty transiUon relief • What does the relief provide? • HOWEVER, it is important to note that there is no corresponding B-‐ Penalty relief!!! • Thus, the employer could be on the hook for the penal@es equal to $3,000 per employee for any employee that goes to the exchange and gets subsidized individual coverage • Most likely helpful on issue of worker misclassifica@on TransiUon Rules
- 21. • New rule for first-‐year ALEs • New monthly measurement method • New seasonal employee defini@on • Clarified treatment of short-‐term, non-‐seasonal hires • Modifica@ons to change in status and break in service rules Overview of Notable Changes
- 22. • To different categories of workers, such as: • Full-‐@me employees • Part-‐@me employees • Variable hour employees • Seasonal employees • Short-‐term, non-‐seasonal employees How Does It Apply?
- 23. • Full-‐Time Employee • Defini@on = An employee reasonably expected to work a full-‐@me schedule (using 30 hr/wk – 130 hr/month defini@on) • Generally, must offer coverage to a full-‐@me employee by the first day of the fourth full month following hire • Excep@ons if using “look back” method and there is a change in status How Does It Apply?
- 24. • Part-‐Time Employee • New defini@on included in the final regula@ons • Part-‐@me = A new employee who is reasonably expected at the employee’s start date not to be a full-‐@me employee • Generally treated just like a variable hour employee How Does It Apply?
- 25. • Variable Hour Employee • Defini@on = An employee not reasonably expected to work a full-‐@me schedule (using 30 hr/wk–130 hr/month defini@on) • Final regs: Facts and circumstances test, but factors to consider include: • Whether the employee is replacing an employee who was or was not a full-‐@me employee • The extent to which employees in the same or comparable posi@ons are or are not full-‐ @me employees • Whether job was adver@sed, or otherwise communicated to the new hire or otherwise documented as full-‐@me • Consider crea@ng wrinen job descrip@ons for variable hour employees that explicitly set out the hours expecta@on How Does It Apply?
- 26. • Variable Hour Employee • How 4980H applies to these employees depends on whether the employer plans to use the “look-‐back” measurement method or the new monthly measurement method • If using the “look-‐back” measurement method: Can apply-‐up to a 12 month measurement period for determining full-‐@me status • If using new monthly measurement method: Must have offered coverage in advance for any calendar month in which the variable hour employee works a full-‐@me schedule (subject to once per-‐employment-‐term 3-‐month non-‐assessment period) How Does It Apply?
- 27. • Seasonal Employee • Proposed regula@ons permined employers to use a good faith interpreta@on for determining who is a “seasonal employee” • An employee is permined under the final regula@ons to apply a measurement period of up to 12 months with respect to seasonal employees (subject to “slice and dice” rules) • The prac@cal effect of this is that no 4980H penal@es are likely to apply (since a seasonal employee should not be employed at the close of the 12-‐month period at which @me the coverage requirement could take effect) • The final regula@ons provide an express defini@on: • Seasonal employee = an employee in a posi@on that is performed at a recurring @me each year and customarily lasts no longer than 6 months • Note: In limited instances, actual employment could in theory extend beyond without jeopardizing status as a seasonal worker How Does It Apply?
- 28. • Short-‐Term, Non-‐Seasonal Employee • Short-‐term hires are NOT necessarily seasonal employees • In fact, many short-‐term hires will NOT qualify as seasonal employees • Why? Because the posi@on (i) customarily lasts in excess of 6 months, or (ii) is not recurring based on a specific @me of the year • The proposed regula@ons included a limited transi@on rule for 2014 that permined employers in certain instances to treat short-‐term hires like seasonal employees and apply a measurement period of up to 12 months • The final regula@ons do NOT include a similar transi@on rule • And specifically state that an employer CANNOT take turnover or expected short-‐term nature of employment into considera@on in determining whether “full-‐@me” • THEREFORE, an employer that employs a short-‐term hire that is expected to work a “full-‐ @me” schedule and is not a seasonal employee generally must be offered 4980H-‐compliant coverage by the first day of the fourth month aqer hire (or else the employer could be subject to penal@es) How Does It Apply?
- 29. • Troubled rollout of federal and many state exchanges • Extended enrollment window through 3/31/14 • By end of March: Total of 6 million enrolled • Percola@ng: • Errors in enrollment and “adver@sing” of plans • Issues with processing premium tax credits and/or cost-‐sharing subsidies State of Exchanges – Public
- 30. • Troubled rollout of federal and many state exchanges • Extended enrollment window through 3/31/14 • By end of March: Total of 6 million enrolled • Percola@ng: • Errors in enrollment and “adver@sing” of plans • Issues with processing premium tax credits and/or cost-‐sharing subsidies State of Exchanges – Public
- 31. • Growing number of providers offering private exchanges – insured or self-‐funded coverage • Agency guidance makes it very difficult for employers to par@cipate in public exchanges u@lizing individual insurance if the employer wants to provide a tax-‐preferred premium subsidy to the employee • Generally, the employer will need to sponsor insured or self-‐funded group health plans • Many employers are considering use of self-‐funded coverage with the private exchange because economics (e.g., the “COI” with insured coverage is too great) • Be careful! – Arrangements can raise ERISA concerns State of Exchanges – Private
- 32. Questions info@gnapartners.com 1-800-253-8562 ** This webinarwill be posted to the G&A website by Friday 32