On October 12, President Trump signed an Executive Order directing the federal agencies in charge of implementing the Affordable Care Act (ACA) to propose new regulations or revise existing guidance to expand access to association health plans (AHPs), short-term insurance plans, and health reimbursement arrangements (HRAs). While the order directs the agencies to consider changes that would have a sweeping effect on the health insurance industry, it has no immediate effect – any changes in rules or regulation will be subject to standard notice and comment periods.
Separately, the President intends to stop the government’s reimbursement of cost-sharing reduction (CSR) payments made by insurance carriers that participate in the ACA’s Health Insurance Marketplaces. A letter from Health and Human Services (HHS) to the Centers for Medicare and Medicaid Services (CMS) indicated that payments will stop immediately, effective with the payment scheduled for October 18, 2017. The move resulted in a lawsuit filed on October 13, 2017, in federal court in the Northern District of California by a coalition of nearly twenty states against the Trump administration seeking declaratory and injunctive relief requiring that the CSR payments continue to be made. If the CSR payments are not continued by Congress (by appropriating funds for the payments) or through judicial action (by finding that the ACA contains a permanent appropriation for the payments), it will have a much more immediate and disruptive effect on the individual market than the Executive Order. It may also impact the small and large group markets, which rely on the individual market to provide coverage in certain cases to part-time employees, an alternative to COBRA, and encourage early retirement by offering a bridge to Medicare, as well as avoiding further cost-shifting from health care providers to private plans in response to shortfalls in public payments.
Notably, the cessation of CSR payments does not impact an employer’s obligations under the ACA’s “pay-or-play” mandate, as penalties under that mandate are triggered by a full-time employee’s receipt of a federal premium tax credit, which continue to be funded under the ACA’s permanent appropriation.
Executive Order – Expansion of Association Health Plans
The order provides that, within 60 days of October 12, the U.S. Department of Labor (DOL) should consider proposing regulations or revising guidance to allow more employers to form AHPs. The order directs the DOL to consider expanding the conditions that satisfy the commonality‑of-interest requirements under current Department of Labor advisory opinions interpreting the definition of an “employer” under the Employee Retirement Income Security Act of 1974 (ERISA). In addition, the order directs the DOL to consider ways to promote AHP formation on the basis of common geography or industry.
While the order itself is brief and does not offer much detail, an expansion of the definition of “employer” under ERISA might mean that the administration is considering ways to allow individuals and small employers to be treated as “large groups” for purposes of the ACA’s market reforms. Under the ACA, health plans offered to individuals and small employers generally must include coverage for services in all ten categories of essential health benefits, and the premium rates cannot vary based on health status (rates may vary based only on age, tobacco use, geographic area, and family size). If individuals and small employers could form “associations” to purchase health insurance as “large groups,” they could offer leaner, less expensive plans that might appeal to younger, healthier individuals. For example, large group plans may, subject to any state insurance mandates applicable to fully-insured plans, exclude coverage for mental health and substance use disorders, prescription drugs, or other costly services that tend to be used by individuals who are older or less healthy.
States traditionally have authority to regulate association health plans and insurance sold in their state and would likely challenge any rules that they perceive could damage their insurance markets. In the past, when association coverage legislation was proposed, there has been opposition by various state governments, consumer, business, labor and health care provider and patient advocacy groups because of concerns regarding “cherry-picking” of healthier individuals (in turn, causing those with pre-existing conditions to pay more for such coverage on the open market) as well as concerns that such plans promote fraud and insolvency. Depending on how the rules are written, associations could potentially offer plans across state lines, thus weakening states’ regulatory authority. The extent to which any new rules regarding associations will attempt to supersede state authority remains to be seen.
It will also be difficult under existing rules and regulations to fit non-employment based associations within the framework of ERISA, which requires an employment relationship between the plan sponsor and participants. The order doesn’t address the potential MEWA status of AHPs. Unless existing regulations are revised, AHPs composed of unrelated employers would still be viewed as multiple employer welfare arrangements (MEWAs) under ERISA, which means that they would be subject to state insurance laws such as solvency and licensing requirements and, except in limited situations, have additional administrative burdens (e.g., Form M-1 filing requirement). It remains to be seen if future regulations would attempt to apply ERISA preemption to certain state requirements that may otherwise apply to MEWAs.
Executive Order – Short-Term Limited-Duration Insurance
Short-term limited-duration insurance (STLDI) is exempt from the ACA’s insurance mandates and market reforms. It is intended to bridge gaps in coverage – for example, individuals between jobs or having just graduated from school. Because it’s exempt from the ACA, insurers offering STLDI plans may underwrite based on medical history and charge higher premiums for individuals based on health status. In order to prevent younger, healthier individuals from leaving the individual market, Obama-era regulations limited the coverage period for STLDI from less than 12 months to less than 3 months and prevented any extensions beyond 3 months of total coverage.
The order provides that, within 60 days of October 12, HHS, the DOL and Treasury should consider proposing regulations or revising guidance to expand the availability of STLDI. In particular, as long as it is supported by sound policy, the order provides that agencies should consider allowing STLDI to cover longer periods and be renewed by the consumer. As with the section of the order dealing with association plans, states may challenge this order as infringing on their ability to regulate their insurance industry and may resist rules they consider to be disruptive or potentially damaging.
Executive Order – Health Reimbursement Arrangements (HRAs)
HRAs are tax-advantaged, account-based arrangements that employers can establish for employees to give employees more flexibility and choices regarding their healthcare. The order providers that, within 120 days of October 12, HHS, the DOL and Treasury should consider proposing regulations or revising guidance to increase the usability of HRAs, to expand employers’ ability to offer HRAs to their employees, and to allow HRAs to be used in conjunction with individual market coverage. This provision appears to be intended to repeal Obama-era rules that required most HRAs to be “integrated” with a group health plan and generally prohibited their use to purchase individual market coverage. Eligible “small employers” (i.e., those with fewer than 50 full-time employees or equivalents) have been able to use HRAs (referred to as Qualified Small Employer HRAs, or QSEHRAs) to reimburse individual market premiums since the start of 2017, a change made by the 21st Century Cures Act, which was passed in December 2016 (several restrictions apply, including the requirement that an employer offer no other group health plan aside from the QSEHRA).
Cessation of Cost Sharing Reduction (CSR) Payments
Also on October 12, 2017, the Trump administration filed a notice with the U.S. Court of Appeals for the District of Columbia Circuit, informing the Court that cost-sharing reduction payments will stop because it has determined that those payments are not funded by the permanent appropriation established for the ACA’s premium tax credits. Therefore, the upcoming payment to insurance carriers scheduled for October 18, 2017, will not occur unless a court intervenes and orders the payment to be made, or Congress appropriates the funding.
The move was met with a swift reaction from the Attorney General of California, who led a coalition of nearly 20 states in a lawsuit against the Trump administration, alleging that the sudden decision to stop the CSR payments did not evolve from “a good-faith reading of the [ACA]” and “is part of a deliberate strategy to undermine the ACA’s provisions for making health care more affordable and accessible” by making it more difficult and expensive for individuals to obtain health insurance through the ACA’s Health Insurance Marketplace.
When Congress enacted the ACA, it intended to increase the number of Americans covered by health insurance and decrease the cost of health care. To achieve these goals, the ACA adopted a series of mandates and reforms, including the creation of the Health Insurance Marketplace and provision of billions of dollars in federal funding to help make health insurance more affordable for low- and moderate-income Americans. These subsidies help offset premiums as well as participant cost-sharing, such as deductibles and coinsurance. The CSR payments to carriers reimburse them for reductions in participant cost-sharing that the carriers are required to apply under the ACA.
The premium subsidies and CSRs are generally paid directly to insurance carriers. The ACA requires the IRS to ensure payment of the premium tax credits and requires HHS to make “periodic and timely” payments to insurance carriers for the CSRs. The premium credits and CSRs are paid through a single, integrated program created by the ACA. To fund this integrated system of health insurance subsidies, the ACA established a permanent appropriation for amounts necessary to pay refunds due from the premium tax credit and CSR subsidies. The lawsuit asserts that the Executive Branch has the authority and obligation to make premium tax credit and CSR payments to insurers on a regular basis and that no further appropriation from Congress is required. The lawsuit also alleges that the sudden cessation of the payments is arbitrary and capricious under Administrative Procedure Act (APA), as the government failed to adequately explain their decision that that they no longer have the authority to make CSR payments. Lastly, the complaint alleges that by refusing to make the CSR reimbursement payments mandated by the ACA and its permanent appropriation, as well as taking the other actions described above, the President is violating the Take Care Clause of the U.S. Constitution, which provides that the President must “take Care that the Laws be faithfully executed.”
It is also worth mentioning that stopping the approximately $7 billion per year in CSR payments is predicted to cost the federal government nearly $200 billion over 10 years, according to the Congressional Budget Office. This is because the average amount of premium subsidy per person would be greater, and more people would receive subsidies in most years.
The View from MarBar
The Executive Order and the cessation of CSR payments follows a set of regulations released by the Trump administration the previous week that scaled back the ACA’s contraceptive coverage requirement. After several attempts to repeal and replace the ACA, a seminal campaign pledge of President Trump, failed to garner enough votes in the Republican-controlled Senate, it appears that the Trump administration is turning to regulatory and sub-regulatory action to make changes to the nation’s health care system in what may be an effort to force Congress to revisit legislative action. While some Republicans in Congress view the President’s action as expanding “free market reform,” there are those on the other side of the aisle that view it as “executive sabotage” of the ACA. The approaches described in the Executive Order expose the Obama administration’s reliance on regulatory and sub-regulatory guidance to implement strategies to advance the ACA. Time will tell if the Trump administration’s guidance is consistent with faithfully executing the ACA, now that it remains the law of the land for the foreseeable future.
In the meantime, employers should wait to see how any regulations are drafted as a result of the Executive Order. As mentioned, new rules would be subject to notice and comment periods, which should allow employers adequate time to prepare for any changes. Lastly, employers should be concerned with the government’s cessation of CSR payments and its potential impact on the group insurance market, especially the potential increase in COBRA participation and delay of early retirement. Health insurance industry trade groups have issued statements indicating that the payments are critical and that there are real consequences to stopping them, in that costs will rise and the insurance markets could become unstable.
1.The lawsuit highlights various efforts by the Trump administration aimed at weakening the Marketplace, including the administration’s substantially reduced efforts to educate and encourage individuals to sign up for health insurance through the Marketplace. In addition, HHS has reduced its advertising budget for the Marketplace program to $10 million, a 90% decrease from the $100 million allocated for the program in 2016. HHS also reduced the amount of money granted to nonprofit organizations that serve as “navigators” to help individuals enroll in health plans offered through the Marketplace to $36 million, as compared to $63 million in 2016. HHS has also reduced the Marketplace open enrollment period from twelve weeks to six, and has announced that it will shut down the HealthCare.gov website for 12 hours every Sunday during the open enrollment period.
On October 20, 2017, the Internal Revenue Service (IRS) released Revenue Procedure 2017-58, which raises the health Flexible Spending Account (FSA) salary reduction contribution limit by $50 to $2,650 for plan years beginning in 2018. The Revenue Procedure also contains the cost-of-living adjustments that apply to dollar limitations in certain sections of the Internal Revenue Code. The following summarizes other adjustments relevant to individuals and employer sponsors of welfare and fringe benefit plans.
Qualified Commuter Parking and Mass Transit Pass Monthly Limit Increase
For 2018, the monthly limitation for the qualified transportation fringe benefit is $260, as is the monthly limitation for qualified parking (in both cases, a $5 increase from the 2017 limit).
Small Employer Health Insurance Tax Credit Average Annual Wage Limit Increase
For 2018, the maximum average annual wages of employees used for determining who is an eligible small employer for purposes of the credit is $53,400 (a $1,000 increase from the 2017 threshold). The average annual wage level at which the tax credit begins to phase out for eligible small employers is $26,700 (a $500 increase from the 2017 threshold).
Adoption Assistance Tax Credit Increase
For 2018, the amount that can be excluded from an employee’s gross income for the adoption of a child with special needs is $13,840 (a $270 increase from the 2017 limit). The maximum amount that can be excluded from an employee’s gross income for the amounts paid or expenses incurred by an employer for qualified adoption expenses furnished pursuant to an adoption assistance program for other adoptions by the employee is $13,840 (a $270 increase from the 2017 limit). The amount excludable from an employee’s gross income begins to phase out for taxpayers with modified adjusted gross income in excess of $207,580 (a $4,040 increase from the 2017 threshold) and is completely phased out for taxpayers with modified adjusted gross income of $247,580 or more (a $4,040 increase from the 2017 threshold).
Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) Increase
For 2018, reimbursements under a QSEHRA cannot exceed $5,050 (single) / $10,250 (family). This represents an increase of $50 (single) / $250 (family) from 2017.
Refundable Credit for Coverage Under a Qualified Health Plan
For 2018, the limit on repayment of excess advance premium credits is determined using the following table:
|If the household income (expressed as a percent of the federal poverty line) is:||The limitation amount for unmarried individuals (other than surviving spouses and heads of household) is:||The limitation amount for all other taxpayers is:|
|Less than 200%||$300||$600|
|At least 200% but less than 300%||$775||$1,550|
|At least 300% but less than 400%||$1,300||$2,600|
|Over 400% of the federal poverty line||No cap (full amount repaid)||No cap (full amount repaid)|
In other words, individuals who were ultimately ineligible for the premium credits they received will have their repayment capped based on the table above.
Reminder: 2018 HSA Contribution Limits and HDHP Deductible and Out-of-Pocket Limits
Earlier this year, the IRS announced the inflation adjusted amounts for 2018 relevant to HSAs and high deductible health plans (HDHPs). The table below summarizes those adjustments.
|2018 (single/family)||2017 (single/family)|
|Annual HSA Contribution Limit||$3,450 / $6,900||$3,400 / $6,750|
|Minimum Annual HDHP Deductible||$1,350 / $2,700||$1,300 / $2,600|
|Maximum Out-of-Pocket for HDHP||$6,650 / $13,300||$6,550 / $13,100|
The ACA’s out-of-pocket limits for in-network essential health benefits have also increased for 2018. Note that all non-grandfathered group health plans must contain an embedded individual out-of-pocket limit within family coverage, if the family out-of-pocket limit is above $7,350 (2018 plan years) or $7,150 (2017 plan years). Exceptions to the ACA’s out-of-pocket limit rule are available for certain small group plans eligible for transition relief (referred to as “Grandmothered” plans). Unless extended, relief for Grandmothered plans ends December 31, 2018.
|2018 (single/family)||2017 (single/family)|
|ACA Maximum Out-of-Pocket||$7,350 / $14,700||$7,150 / $14,300|
ACA Reporting Penalties (Forms 1094-B, 1095-B, 1094-C, 1095-C)
The following table reflects penalties for returns filed in the applicable year (i.e., the 2018 penalty is for returns filed in 2018 for calendar year 2017). Note that failure to provide Form 1095-C to an employee and the IRS may result in two penalties, as each are supposed to receive the form (increased for willful failures, with no cap on the penalty).
|Penalty Description||2019 Penalty||2018 Penalty|
|Failure to file an information return or provide a payee statement||$270 for each return with respect to which a failure occurs||$260 for each return with respect to which a failure occurs||Annual penalty limit for non-willful failures||$3,282,500||$3,218,500||Lower limit for entities with gross receipts not exceeding $5M||$1,094,000||$1,072,500||Failures corrected within 30 days of required filing date||$50||$50||Annual penalty limit when corrected within 30 days||$547,000||$536,000||Lower limit for entities with gross receipts not exceeding $5M when corrected within 30 days||$191,000||$187,500||Failures corrected by August 1||$100||$100||Annual penalty limit when corrected by August 1||$1,641,000||$1,609,000|
|Lower limit for entities with gross receipts not exceeding $5M when corrected by August 1||$547,000||$536,000||Failure to file an information return or provide a payee statement due to intentional disregard||$540 for each return with respect to which a failure occurs (no cap)||$530 for each return with respect to which a failure occurs (no cap)|
On Oct. 6, 2017, the IRS released Notice 2017-61, which announces that the adjusted applicable dollar amount for PCOR fees for plan and policy years ending on or after Oct. 1, 2017, and before Oct. 1, 2018, is $2.39. This is a $.13 increase from the amount in effect for plan and policy years ending on or after Oct. 1, 2016, but before Oct. 1, 2017.
As a reminder, PCOR fees are payable by insurers and sponsors of self-insured plans (including sponsors of HRAs). The fee doesn’t apply to excepted benefits such as stand-alone dental and vision plans or most health FSAs. The fee is, however, required of retiree-only plans. The fee is calculated by multiplying the applicable dollar amount for the year by the average number of lives, and is reported and paid on IRS Form 720 (which hasn’t yet been updated to reflect the increased fee). It’s expected that the Form will be updated prior to July 31, 2018, since that’s the first deadline to pay the increased fee amount for plan years ending between October and December 2017.
On Oct. 3, 2017, the IRS released final instructions related to IRC Sections 6055 and 6056 reporting. The 2017 instructions appear to have no substantial changes from the 2016 instructions, and the final forms were reported on in the Oct. 3, 2017, edition of Compliance Corner. For example, the multi employer interim relief rule remains in place for applicable large employers that contribute to a multi employer plan.
The most notable change is that no Section 4980H transition relief is available beginning with the 2017 reporting year. Thus, all references to such relief have been removed. Specifically, boxes B and C on Line 22 of the Form 1094-C (which were previously used to claim transition relief) have now been marked as “reserved.” Similarly, column (e) of Part III of the Form 1094-C has also been marked “reserved.”
Here are some other minor changes from last year:
- Updates have been made to references for items that have been adjusted for inflation, such as the affordability percentage (9.69 percent for 2017).
- There is new language in the instructions for Forms 1094-C and 1095-C in the section regarding corrected returns that may cause confusion for employers (please see our Sept. 6, 2017, Compliance Corner for additional information). It states that an incorrect entry of the employee’s cost of coverage on Line 15 would not necessitate a corrected filing if the entry differs from the correct amount by $100 or less. This safe harbor is based on guidance provided in IRS Notice 2017-9 for certain de minimis errors.
- The IRS provides clarification for Form 1095-C that there is no specific code to enter on Line 16 to indicate that a full-time employee who was offered coverage either did not enroll in the coverage or waived the coverage. This is consistent with the previous interpretation, which generally instructed that the line either be left blank or be completed with an affordability safe harbor code, as applicable.
- In Part II of the Form 1095-C, it was anticipated that the “Plan Start Month” box would be mandatory for 2017. In the final version of the instructions, the box remains optional for 2017.
Importantly, the final instructions provide no mention of relief from penalties for a good faith compliance effort. This is similar to the 2016 version of the instructions. However, the IRS later provided such relief through communication on their website in regards to the 2016 reporting year. While the IRS could potentially provide a similar communication closer to the 2017 filing deadlines, employers should assume for now that no such good faith relief will be available.
As a reminder, Forms 1094-B and 1095-B (the forms used for Section 6055 reporting) are required of insurers and small self-insured employers that provide MEC. These reports will help the IRS administer and enforce PPACA’s individual mandate. Form 1095-B, the form distributed to the covered employee, will identify the employee, any covered family members, the group health plan and the months in 2017 for which the employee and family members had MEC under the employer’s plan. If the plan is fully insured, Form 1094-B identifies the insurer (for a fully insured plan) or the employer (for a self-insured plan) and is used by the insurer to transmit corresponding Forms 1095-B to the IRS.
Additionally, PPACA requires all employers with 50 or more full-time-equivalent employees to file Forms 1094-C and 1095-C with the IRS and to provide statements to employees to comply with IRC Section 6056 (meant to help the IRS enforce the PPACA’s employer mandate). Specifically, large fully insured employers will need to complete and submit Forms 1094-C and 1095-C (Parts I and II). Large self-insured employers, which are subject to both Sections 6055 and 6056, may combine reporting obligations by using Form 1094-C and completing all sections of Form 1095-C (Parts I, II and III). Small self-insured employers would need to file Forms 1094-B and 1095-B. Employers with grandfathered plans must comply with the reporting requirements as well.
Finally, the due dates for 2017 employer reporting are:
- Jan. 31, 2018, to provide 2017 information returns to employees or responsible individuals.
- Feb. 28, 2018, for paper filings with the IRS of all 2017 Forms 1095-C or 1095-B, along with transmittal Form 1094-C or 1094-B. Employers filing fewer than 250 forms may file by paper or electronically.
- April 2, 2018, for electronic filings with the IRS of all 2017 Forms 1095-C or 1095-B, along with transmittal Form 1094-C or 1094-B. Employers filing 250 or more forms must file electronically with the IRS.
On Oct. 17, 2017, the IRS released a statement on its ACA Information Center for Tax Professionals webpage for the upcoming 2018 filing season regarding a change in reporting requirements on individual federal income tax returns (Form 1040). The IRS won’t accept electronically filed tax returns where the taxpayer doesn’t address the health coverage requirements of the ACA on line 61 (Health Care: Individual Responsibility). So, electronic tax returns must indicate whether the taxpayer had coverage, had an exemption or will make a shared responsibility payment. Additionally, paper returns that don’t address the health coverage requirements may be suspended pending the receipt of additional information, and any refunds may be delayed.
The 2018 filing season will be the first time the IRS won’t accept tax returns that omit this information. The IRS took a different stance for the 2017 filing season, which we discussed in our March 7, 2017, edition of Compliance Corner.
As background, the individual shared responsibility provision (i.e., the individual mandate) requires individuals to do at least one of the following:
- Have qualifying health coverage (called minimum essential coverage)
- Qualify for a health coverage exemption
- Make a shared responsibility payment for the months that the individual did not have coverage or an exemption
Some taxpayers will have qualifying health care coverage for all 12 months in the year and will be able to check the “full-year coverage” box on line 61 of their return. This year, the IRS has put in place system changes that will reject tax returns during processing in instances where the taxpayer doesn’t provide information related to health coverage (i.e., leaves the box unchecked).
As a reminder, the legislative provisions of the ACA are still in force until changed by Congress, and taxpayers remain required to follow the law and pay what they may owe. So, the IRS may still enforce the individual mandate, and Forms 1040 will be rejected at the time of filing. To avoid refund and processing delays when filing 2017 tax returns in 2018, taxpayers should indicate whether they and everyone on their return had coverage, qualified for an exemption from the coverage requirement or are making an individual shared responsibility payment.
When the IRS has questions about a tax return, taxpayers may receive follow-up questions and correspondence at a future date, after the filing process is completed, and taxpayers should work with individual tax advisors with respect to answering those questions and correspondence.
The average premium for employer-sponsored health insurance was $6,690 for single coverage and $18,764 for family coverage in 2017.
Those figures are up 4 percent and 3 percent, respectively, from last year.
Contact your HealthSure Insurance Services, Inc. representative to discuss strategies for reducing premium costs.