For the past several months (and, in many cases, years), most large employers have been preparing for the consequences of offering (or not offering) their workforce health coverage and complying with the complexities introduced by the Employer Mandate under the ACA. Now that the enforcement of the Employer Mandate taxes and reporting has been delayed until 2015, employers can breathe a little easier. However, there are several other issues apart from the Employer Mandate that should be on the radar for most employers as we move toward 2014 and beyond. This is especially true with respect to the areas of the ACA that were not changed by the delay of the Employer Mandate provisions.
Below is a "top-10" list of issues (both ACA and non-ACA) that employers should be considering now in relation to their health care plans. The ranking is generally according to deadlines or timeliness, with the most immediate and timely topics listed last. Although the list of issues and the order of their importance will vary from employer to employer, the following items will apply to most:
- Review and revise, as necessary, all plan documents related to health care plans and arrangements. The ACA has required many changes to plan operations over the past few years and will continue to require changes. As employers gear up for the enforcement of the Employer Mandate in 2015, they should carefully review all plan documents to verify that all necessary changes under the ACA have been made and review eligibility provisions in light of the delay of the Employer Mandate. Employers may have already had some plan design changes in play to prepare for the Employer Mandate and now should consider what to implement in 2014 and what to delay to 2015.
- Continue to prepare for the Employer Mandate. Although employers do not have to worry about enforcement of the Employer Mandate tax penalties and reporting requirements in 2014, employers should continue to prepare for the Employer Mandate by evaluating their workforce -- both the classification of employees and the counting of hours. The delay provides an opportunity for employers to consider 2014 to be a test year regarding who should be offered coverage and address potential issues. See the article, " Stand and Be Counted," by Georgeann Peters, for key considerations in determining employees who must be offered affordable medical care by 2015 according to the Employer Mandate.
- Review cost-sharing for 2014 coverage in light of the delay of the Employer Mandate. Although the affordability requirement will not be enforced in 2014, certain new limits on cost-sharing provisions are still effective in 2014, such as the application of co-payments to out-of-pocket maximums. In addition, many employers had already begun to budget for new employee contribution cost-sharing provisions in 2014 to address affordability issues. Given the delay in the enforcement of the Employer Mandate to 2015, employers will want to take the time to review their cost-sharing structures and evaluate whether to implement or delay any shifts in employee contribution cost-sharing.
- Review and revise wellness programs and incentives based on the ACA guidance. Earlier in 2013, new wellness program regulations were published that increase the amount of dollar incentives that employers can provide to employees to encourage healthier lifestyles through the use of standards-based program incentives. Through these programs employers can incentivize employees to meet certain health standards through financial incentives of up to 30 percent of the total cost of the health care coverage for general wellness programs (and up to 50 percent of the cost of health care coverage for wellness programs designed to prevent or reduce tobacco use). As with previous guidance, alternative standards will need to be available in certain situations. In addition, compliance with the ACA's guidance on wellness programs does not guarantee compliance with the provisions of the Americans with Disabilities Act or the EEOC's concerns about wellness program penalties and incentives, so employers need to take care in developing their wellness programs.
- Prepare for the rest of the ACA. Although the Employer Mandate has been delayed, the rest of the provisions of the ACA are scheduled to move forward. Requirements such as the removal of pre-existing conditions, the Individual Mandate, the Health Insurance Marketplaces, new employee notice requirements and communications, plan fees and many other ACA requirements will need to be implemented as originally scheduled.
- Gear up for ACA notices. Significant ACA requirements involve communicating information regarding the employer's health plan to employees. In 2012, the Summary of Benefits and Coverages (the SBC) was introduced. SBCs must be distributed again in the Fall 2013. Also in 2013, employers will be required to send a new notice to members of their workforce regarding the "New Health Insurance Marketplace Coverage Options and Your Options." Through this Marketplace Notice, employers will educate members of the workforce about the Health Insurance Marketplaces (Marketplaces) that will be open for enrollment for the first time from October 1, 2013, through March 31, 2014. All employers (regardless of size) must produce and distribute this Notice.
- Prepare for an earlier open enrollment as a result of additional notice requirements. In the interest of efficiency, many employers try to do one large mailing each fall that includes required employee notices and open enrollment materials for the enrollment in the following year. With the October 1, 2013, deadline for the distribution of the Marketplace Notice, employers should consider moving open enrollment to an earlier date to accommodate the Marketplace Notice deadline. Then, all notices, such as the SBCs, CHIPRA, WHCRA, Wellness Programs "Alternative Standards" and Medicare Part D (in accordance with special rules for Medicare Part D notices) could be distributed at one time with the open enrollment materials.
- Develop strategies and educate human resources personnel regarding the Individual Mandate and the Health Insurance Marketplaces. The enforcement of the Employer Mandate was delayed to 2015, but the obligation of employees to have individual coverage under the "Individual Mandate" begins January 1, 2014, and the opportunity for individuals to purchase coverage on the Health Insurance Marketplaces begins on October 1, 2013. Employers will not be isolated from the Marketplaces. As noted above in the fourth and fifth items, employers will be required to provide notices to employees regarding the Marketplaces and will be required to respond to Marketplace requests to confirm employee data and coverage. As observed in the article, " Too Soon for Party Hats," John McGowan highlights the fact that employers -- especially human resource and benefits personnel -- will likely be besieged with employee questions about Marketplaces. To prevent confusion, "mischief" and the accompanying employee relations challenges described in that article, employers need to understand, on one hand, their proper duties and responsibilities and, on the other hand, the limits on what they are required to do. For this reason, it is critical that management develop specific strategies and educate themselves and their human resources personnel to address the potential issues, scenarios and questions that are likely to occur beginning October 1, 2013.
- HIPAA/HITECH -- Updates required for the Final Rule. ACA is not all there is on the short-term horizon. In January 2013, the final HIPAA/HITECH regulations were issued by the HHS. As a result, all employers should be reviewing, and, as necessary, updating their HIPAA policies and procedures for their covered entity health plan, including Privacy Notices, and evaluating business associate relationships and underlying agreements. The deadline for compliance is generally September 23, 2013, with the exception of certain business associate agreements that were compliant on January 25, 2013, which have until September 2014 to be amended.
- Changes necessitated by the Supreme Court's ruling related to the Defense of Marriage Act (DOMA). At the time of publication of this newsletter, government guidance for employee benefit plans had not been issued regarding the U.S. Supreme Court's decision in United States v. Windsor, 570 U.S. __, 133 S. Ct. 2675 (2013), as reported in the BakerHostetler Executive Alert posted on June 27, 2013. The decision greatly impacted the provision of employee benefits to the same-sex spouses of employees by eliminating certain federal restrictions under DOMA. It is anticipated that guidance will be issued soon. In any event, at least two lower federal courts have issued opinions since Windsor that appear to have expanded the scope of the Supreme Court's decision. See, for example the decision from the Eastern District of Pennsylvania, Cozen O'Connor, P.C., v. Tobits. All employers should be evaluating their health and welfare benefit plans in anticipation of the expected government guidance and continued development of the law by the courts. Some of the changes related to the provision of tax-advantaged health benefits are retroactive, but most will be effective going forward. How far back the changes must go, and whether or to what extent employers must implement changes before January 1, 2014, is not yet known. BakerHostetler will be issuing future alerts on this topic as government guidance and as further significant court rulings are issued.
As Fall 2013 is quickly approaching, absent the shadow of the Employer Mandate, all employers should use this opportunity to carefully consider the above items as part of their strategic planning for 2014 and 2015, as well as general ongoing compliance for their health plans.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
