On November 6, the Department of Labor issued FAQ Part 22, which directly addresses some recent efforts by employers to reimburse employees for participation in the exchange through Code Section 105, or through some type of other arrangement. Here are the questions, with shortened answers.
Q1: My employer offers employees cash to reimburse the purchase of an individual market policy. Does this arrangement comply with the market reforms?
No. If the employer uses an arrangement that provides cash reimbursement for the purchase of an individual market policy, the employers payment arrangement is 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. Under the Departments prior published guidance, the cash arrangement fails to comply with the market reforms because the cash payment cannot be integrated with an individual market policy.
Q2: My employer offers employees with high claims risk a choice between enrollment in its standard group health plan or cash. Does this comply with the market reforms?
No. PHS Act section 2705, as well as the nondiscrimination provisions of ERISA and HIPAA prohibit discrimination based on one or more health factors. Offering, only to employees with a high claims risk, a choice between enrollment in the standard group health plan or cash, constitutes such discrimination. Also, because the choice between taxable cash and a tax-favored qualified benefit (the election of coverage under the group health plan) is required to be a Code section 125 cafeteria plan, imposing an effective additional cost to elect coverage under the group health plan could, depending on the facts and circumstances, also result in discrimination in favor of highly compensated individuals in violation of the Code section 125 cafeteria plan nondiscrimination rules.
Q3: A vendor markets a product to employers claiming that employers can cancel their group policies, set up a Code section 105 reimbursement plan that works with health insurance brokers or agents to help employees select individual insurance policies, and allow eligible employees to access the premium tax credits for Marketplace coverage. Is this permissible?
No. The departments have been informed that some vendors are marketing such products. However, these arrangements are problematic for several reasons. First, the arrangements are themselves group health plans and, therefore, employees participating in such arrangements are ineligible for premium tax credits for marketplace coverage. The mere fact that the employer does not get involved with an employees individual selection or purchase of an individual health insurance policy does not prevent the arrangement from being a group health plan. Second, such arrangements are subject to the market reform provisions of the Affordable Care Act, including prohibition on annual limits and the requirement to provide certain preventive services without cost sharing. Such employer health care arrangements cannot be integrated with individual market policies to satisfy the market reforms and, therefore, will violate PHS Act sections 2711 and 2713, among other provisions, which can trigger penalties such as excise taxes under section 4980D of the Code.
So if you are thinking the solution to compliance is to simply pay for your employee to participate in the exchange, make sure you understand the answers to these questions. Clearly the department is aware that employers have considered this as a solution and are giving it careful scrutiny.
Keith R. McMurdy is a partner with Fox Rothschild focusing on labor and employment issues; he can be reached at email@example.com or (212) 878-7919.
The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.
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