While the statutory framework of the ACA remains intact, there are several developments that may occur in Congress on the regulatory front and in the courts that warrant an employer’s attention. The next few weeks will be extremely important as events unfold with respect to the individual insurance markets and the viability of state and federal health insurance marketplace exchanges. However, until these developments play out, it is business as usual, albeit with heightened attention, for employers.

President Trump has threatened to stop the payment of cost-sharing reduction subsidies to insurance companies, which help make individual insurance policies on the insurance exchanges affordable by covering deductibles, co-payments, and co-insurance for qualifying individuals.

What happens in the individual market is important to employers as many rely on the availability of the exchanges as a strategy for making sure their part-time workforce has health insurance coverage and for bridging early retirees to Medicare.

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A less attractive individual market may increase pressure on employers to cover these vulnerable groups, especially in a tightening labor market.

To date, the Internal Revenue Service has relaxed enforcement of the individual mandate and did not require taxpayers to report whether they had health insurance coverage on their 2016 tax returns.

However, the IRS has not relaxed enforcement of the employer mandate. Although the IRS has acknowledged glitches in the ACA reporting system, the IRS has confirmed that an applicable large employer is still subject to an employer shared responsibility payment if it fails to offer coverage to 95% of its full-time employees or has a full-time employee who obtains coverage on the insurance marketplace and receives premium assistance or a tax credit, and the employer’s coverage is not affordable or did not provide minimum value.

Large employers should continue to offer minimum essential coverage to their full-time employees to avoid penalties and to track offers of coverage in order to comply with reporting requirements on IRS Forms 1094 and 1095.

The IRS has been sending rejection notices and inquiries to employers regarding 2015 and 2016 Form 1094 and 1095 filings with respect to incorrect taxpayer ID numbers, incorrect employer ID numbers, incorrect employee or dependent social security numbers, and failure to file.

The failure-to-file inquiry is usually triggered when a company is filing an IRS Form W-2 for an employee and is identified as a large employer, but has not filed Forms 1094 or 1095 with respect to such employee.

The ACA requires each member of an aggregated applicable large employer group to report on Forms 1094 and 1095, even if it has fewer than 50 employees. In addition, with respect to ACA reporting, the IRS does not permit an employer to disregard controlled group members and report on a consolidated corporate return.

Unless the IRS announces non-enforcement relief, employers can expect to receive Notice and Demand for Payment letters from the IRS for failure to comply with the employer shared responsibility requirements.

Congressman Kurt Schrader (D-Ore.) recently proposed a solution supported by the bipartisan Problem Solvers Caucus to amend the ACA, which includes the following components:

  • Bring CSR payments under the Congressional oversight and appropriations process, but ensure they have mandatory funding.
  • Create a dedicated stability fund that states can use to reduce premiums and limit losses for providing coverage — especially for those with pre-existing conditions.
  • Adjust the employer mandate by raising the threshold on the requirement for employers to provide insurance under the employer mandate to businesses of 500 employees or more.
  • Repeal the medical device tax.
  • Provide technical changes and clear guidelines for states that want to innovate on the exchange or enter into regional compacts to improve coverage and create more options for consumers.

For the moment, a full-scale repeal of the ACA taxes and onerous employer reporting obligations appears to be out of reach due to the August Congressional recess and the inability of Congress to achieve consensus.

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However, employers are hoping Congress can still pass narrowly tailored relief in the form of standalone legislation or by including reforms in a bipartisan bill to stabilize the insurance markets. In addition, last January, President Trump issued an Executive Order directing federal agencies to minimize the ACA’s regulatory burden wherever possible.

Accordingly, regulatory guidance from the departments with ACA oversight — Labor, Treasury, and Health and Human Services — can be expected in response to the Executive Order, which may give employers relief from the ACA’s onerous employer shared responsibility requirements.

Areas where reform could occur include increasing the size of the employer to whom the tax applies, increasing the number of hours for determining who is a full-time employee, simplifying the methodology for counting hours or changing the rules applicable to seasonal employees and interns.

Efforts to ease and simplify the tax reporting burdens on Forms 1094 and 1095 would also be welcomed by employers.

Employer and industry trade groups are also opposed to the so-called “Cadillac tax” on high-cost health plans, and bipartisan legislation has already been introduced in Congress to repeal the 40% excise tax.

Employers are loath, however, to trade elimination of the Cadillac tax for taxes imposed on employees for the cost of employer-provided healthcare. Finally, any changes to the maximum contributions that may be made to health savings accounts and healthcare spending account plans, which are popular with employers, would require legislative action.

Employers should continue to follow developments in the healthcare reform area as they finalize their 2018 health plan offerings.

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Susan Nash

Susan Nash

Nash is a partner at Winston & Strawn LLaP.
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Joanna Kerpen

Joanna Kerpen

Kerpen is a partner at Winston & Strawn LLP.
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Amy Gordon

Amy Gordon

Gordon regularly advises clients on their self-funded and insured health plans, wellness programs, and on-site clinics.