United States: Health Care Reform: Administrative Updates

This is the twenty-seventh in the series of alerts intended to keep employers up to date on the evolving requirements of Health Care Reform under the Affordable Care Act (ACA). This Alert addresses a number of recent developments in health care resulting from final regulations promulgated by the Treasury Department and Internal Revenue Service (IRS) on February 12, 2014, and June 20, 2014.

The issues addressed in this alert include the final regulations on waiting and orientation periods, the delay in the employer mandate for mid-size employers, transition rules for counting employees and determining applicable large employer status for 2015, the easing of the employer mandate rules for large employers for 2015, the final rules under employer shared responsibility penalties, the final rules for identifying full-time employees, and the final streamlined information reporting rules.

With the publication of this latest set of final regulations, employers now have all the guidance they are likely to have before implementing changes to their group health plans to comply with Health Care Reform for the 2014 and 2015 plan years.

Final Regulations – Waiting Period

Since we last alerted you about the limitations on waiting periods under ACA (see our prior alert available here), the IRS has issued proposed and, subsequently, final regulations setting forth specific guidance on these rules.

For plan years beginning on or after January 1, 2014, group health plans (grandfathered and non-grandfathered) and group health insurance issuers are prohibited from applying a waiting period that exceeds 90 days. For this purpose, a waiting period is defined as the period of time that must pass before coverage becomes effective for an employee or dependent who is otherwise eligible to enroll in the plan. Being eligible to enroll in a plan means having met the plan's substantive eligibility conditions (such as being in an eligible job classification or achieving job-related licensure requirements specified in the plan's terms). All calendar days are counted, including weekends and holidays, in determining whether the 90-day limitation is exceeded. However, any period before an individual's late or special enrollment is not counted as part of the waiting period.

The waiting period rules do not require coverage to be offered to any particular individual or class of individuals (e.g., part-time employees). Generally, employers can impose a requirement that employees complete a certain number of hours before becoming eligible for coverage, so long as the requirement is capped at 1,200 hours. Both the proposed and final regulations allow certain conditions for eligibility, such as being in an eligible job classification or achievement of performance goals. The major change in this regard is that the final regulations allow employers to require satisfaction of a reasonable and bona fide employment-based orientation period before an employee becomes eligible (see the section entitled "Final Rules on Orientation Period" below for guidance as to what constitutes "reasonable and bona-fide" for this purpose). An orientation period will not be considered designed to avoid compliance with the 90-day waiting period limitation.

The rules clarify that a former employee (or ineligible employee who is rehired back into an eligible class) may be treated as a newly eligible employee. Therefore, the employer can require the employee meet the plan's eligibility criteria and satisfy any waiting period (of less than 90 days) but only if reasonable under the circumstances. Generally, it is reasonable so long as the hire and rehire are not being used to circumvent the 90-day waiting period rules.

For plan years beginning in 2014, plans may comply with either the proposed or the final regulations. The final regulations must be complied with for all plan years beginning on or after January 1, 2015.

Final Rules on Orientation Period

On June 20, 2014, the IRS issued final regulations regarding the orientation period permitted before a 90-day waiting period begins. Under the final regulations imposing the 90-day waiting period limitation (discussed above), employers can impose certain conditions for eligibility. One such condition is the satisfaction of a "reasonable and bona fide employment-based orientation period." The final regulations explain that what constitutes "reasonable and bona fide" is a facts and circumstances analysis of the time needed to evaluate whether the employment situation is satisfactory to each party and begin the standard orientation and training process.

The final regulations clarify that an orientation period will not be considered reasonable and bona fide for these purposes if such period extends beyond one month. The last day of a reasonable orientation period is determined by adding one calendar month and subtracting one calendar day, measured from an employee's start date in a position that is otherwise eligible for coverage. This orientation period should allow (i) an employer and employee to evaluate whether the employment situation is satisfactory for each party, and (ii) standard orientation and training processes to begin.

Under these rules, a group health plan would not be considered to be avoiding compliance with the 90-day waiting period limitation if the plan conditions eligibility on an employee's completing a one month orientation period and the 90-day waiting period begins on the first day after the orientation period. Any additional period of time preceding the 90 day waiting period during which an employee is considered ineligible must be evaluated in light of other eligibility criteria, such as being in an eligible job classification or achieving job-related licensure requirements specified in the plan's terms.

It should be noted that the use of a permitted orientation period as an eligibility requirement does not alter the employer's potential liability for the employer-shared responsibility penalty. For example, if an employee is hired as a full-time employee on January 6 and the employer excludes full-time employees during the orientation period, coverage may begin on May 6, which is one month and 90 days after the hire date. This will satisfy the waiting period requirements. However, the employer may be liable for the shared responsibility penalty, if the coverage does not begin by the first day of the fourth month of employment, which in this case is May 1. Thus, caution should be used in applying the full one month orientation period.

Delay for Employers with 50 – 99 Full-Time Equivalent Employees

The IRS recently announced final regulations regarding the employer mandate that provide, among other things, an enforcement delay of the employer mandate for mid-size employers. Specifically, employers with 50 to 99 "full-time equivalent employees" will have until January 1, 2016, before facing a potential penalty for not offering affordable, minimum value health insurance to at least 95 percent of its full-time employees and the dependents of those employees. (See our alert regarding full-time equivalent employees, full-time employees and affordable, minimum value health insurance for additional information about these topics.) This enforcement delay provides mid-size employers with extra time to finalize methods for tracking employee-hours worked and to manage employment numbers and health insurance availability accordingly.

In order to be eligible for this delay, the employer must certify that it meets the following requirements:

  • Limited Workforce Size. The employer must employ on average at least 50 full-time employees (including full-time equivalents) but fewer than 100 full-time employees (including full-time equivalents) on business days during 2014. (Employers with fewer than 50 full-time employees (including full-time equivalents) on business days during the previous year are not subject to the employer mandate rules.) The number of full-time employees (including full-time equivalents) is determined in accordance with the otherwise applicable rules for determining status as an applicable large employer. See below for rules applicable in 2014 for determining the number of full-time employees and full-time equivalent employees.
  • Maintenance of Workforce and Aggregate Hours of Service. During the period beginning on February 9, 2014,and ending on December 31, 2014, the employer may not reduce the size of its workforce or the overall hours of service of its employees in order to qualify for the delay. However, an employer that reduces workforce size or overall hours of service for bona fide business reasons is still eligible for the relief.
  • Maintenance of Previously Offered Health Coverage.During the period beginning on February 9, 2014, and ending on December 31, 2015 (or, for employers with non-calendar-year plans, ending on the last day of the 2015 plan year), the employer may not eliminate or materially reduce the health coverage, if any, it offered as of February 9, 2014. An employer will not be treated as eliminating or materially reducing health coverage if (i) it continues to offer each employee who is eligible for coverage an employer contribution toward the cost of employee-only coverage that either (A) is at least 95 percent of the dollar amount of the contribution toward such coverage that the employer was offering on February 9, 2014, or (B) is at least the same percentage of the cost of coverage that the employer was offering to contribute toward coverage on February 9, 2014; (ii) in the event of a change in benefits under the employee-only coverage offered, that coverage provides minimum value after the change; and (iii) it does not alter the terms of its group health plans to narrow or reduce the class or classes of employees (or the employees' dependents) to whom coverage under those plans was offered on February 9, 2014.

These mid-size employers are still subject to the 2015 reporting requirements (as discussed below).

Easing the 2015 Employer Mandate for Employers with More than 100 Employees.

Employers with 100 or more full-time employees (including full-time equivalents) will be subject to the employer mandate in 2015. However, for these large employers, enforcement of the penalty for failure to offer coverage in 2015 will apply only to employers who fail to offer coverage to at least 70 percent of their full-time employees or who fail to offer coverage that is affordable and minimum value.

The final regulations also provide limited relief for any penalties an employer incurs in 2015 by permitting employers to exclude 80 (rather than 30) full-time employees from the penalty calculation. For example, if the large employer with 110 full-time employees does not offer coverage to at least 70 percent of the full-time employees (and their dependents) in 2015, the potential monthly penalty for not offering coverage in 2015 is $5,000 ((110-80) x $2,000 / 12).

It is important to note that an employer still may owe a penalty if the employer offers minimum value, affordable health coverage to at least 70 percent of its full-time employees (and their dependents), but at least one full-time employee receives a premium tax credit to help pay for coverage through an exchange. This may occur because the employer did not offer coverage to that employee or because the coverage the employer did offer to that employee was either unaffordable to the employee or did not provide minimum value. This penalty is $3,000 for each full-time employee who actually receives the premium tax credit and is capped at the maximum amount of the penalties discussed in the preceding paragraph. By offering minimum value, affordable health coverage to at least 70 percent of its full-time employees, the employer is saved from the potential imposition of the $2,000 penalty for each full-time employee, applied without regard to whether the employee receives the premium tax credit.

Additional

2015 Transition Provisions

In addition to the 2015 employer mandate enforcement relief discussed above, the final regulations provide 2015 transition relief, including:

  • Non-calendar year plans: Employers with plan years that do not start on January 1 will not be subject to the employer mandate when their plan years begin in 2015, rather than on January 1, 2015. This transition rule applies only to plans in existence before December 27, 2012, for which the plan year has not been changed. Additionally, the transition rule requires that the plan satisfy certain threshold coverage requirements.
  • Six-month Transition measurement period: For stability periods that begin in 2015, employers may adopt a transition measurement period that is shorter than 12 months but no less than six months, even if the corresponding stability period is 12 months.
  • Determining large employer status in 2015: On a one-time basis, employers can determine whether they are a large employer for 2015 by reference to a period of less than six consecutive months in 2014, instead of the full 2014 calendar year.
  • Dependent coverage: The requirement that employers offer coverage to their full-time employees' dependents will not apply to existing plans that take steps to offer dependent coverage in 2014 and new plans in 2015 that are taking steps to arrange for such coverage to begin in 2016. For purposes of the employer mandate, the definition of dependent means a child, other than a stepson, stepdaughter, or eligible foster child, who has not attained age 26. A child is considered under the age of 26 for the entire calendar month of his or her 26th birthday. The term dependent does not include spouses.

Hours of Service Guidance

The identification of an employer's full-time employees and full-time equivalent employees for purposes of determining if the employer is subject to the employer mandate, and, if so, which full-time employees must have an offer of health care coverage, is based on each employee's hours of service. The final regulations provide certain methods that will be considered reasonable for determining hours of service for certain employees.

  • Adjunct faculty: The final regulations state that one reasonable method to credit hours of service to adjunct faculty is to credit an adjunct faculty member with 2¼ hours of service per week for each hour of teaching or classroom time and one hour of service per week for each additional hour outside of the classroom the faculty member spends performing required duties.
  • Educational employees: The final regulations state that employees of educational organizations cannot be treated as new employees unless there has been an employment break-in-service of 26 weeks or longer. This generally means teachers and other educational employees cannot be treated as part-time for the year simply because their school is closed or operating on a limited schedule during the summer.
  • Employees with "on-call" hours: The IRS is considering issuing further guidance on this topic. Until that guidance is released, employers should use a reasonable method for crediting the hours of service to on-call employees. The preamble to the regulations indicates that it is not reasonable for an employer to decline to credit an employee with an hour of service for any on-call hour: (1) for which payment is made or due by the employer; (2) for which the employee is required to remain on the employer's premises; or (3) for which the employee's activities while on-call are substantially restricted due to his or her on-call status. In a Question and Answer session at the American Bar Association's May 2014 meeting, an IRS representative reiterated that if the employee is getting paid for on-call hours (it doesn't matter how much) the employee must receive credit for hours of service for the on-call time. The IRS representative went on to say that there is no concept of partial hours.
  • Temporary staffing firms: The final regulations discuss how employees of temporary staffing firms should be categorized and when such employees have separated from service with the staffing firm. The factors that should be considered generally relate to the typical experience of an employee in the position with the staffing firm that hires the employee.
  • Seasonal employees: Employees in positions for which the customary annual employment is six months or less generally will not be considered full-time employees. Occasional variances that require employment for periods longer than six months will not cause such employees to lose their status as seasonal employees. There are not special rules applicable to seasonal employees. They are either categorized as full-time or if they otherwise meet the definition, as variable hour.
  • Rehired employees: The final regulations reduce, in most situations, the length of the break in service required before a returning employee may be treated as a new employee from 26 weeks to 13 weeks. Thus, under the final regulations, an employee (in most circumstances) may be treated as a new employee if he or she did not provide services to the employer within the 13 consecutive weeks preceding the resumption of services. Alternatively, the employer may apply a rule of parity under which the employee may be treated as a new hire if the break in service is longer than either the period of time they were employed or 4 weeks, if greater.
  • Variable hour employees: The final regulations clarify that an employee falls within this definition if, based on the facts and circumstances at the employee's start date, the employer has no reasonable expectation as to whether the employee will work an average of 30 hours per week during the initial measurement period. The regulations contain specific criteria an employer may use to examine the particular facts and circumstances applicable to the employee.

For purposes of determining if an employer is subject to the employer mandate, the final regulations exclude some "hours of service" from certain workforce activities, including:

  • Hours contributed by bona fide volunteers for a government or tax-exempt entity,
  • Service performed by students under federal or state-sponsored work-study programs, or
  • Any work performed by an individual who is subject to a vow of poverty as a member of a religious order when the work is in the performance of tasks usually required of an active member of the order.

The final regulations do not include any special provisions that address short-term employees or employees in high-turnover positions.

Affordability Safe Harbors

The final regulations preserve several safe harbors that are designed to make it easier for employers to determine whether the coverage they offer is "affordable" to employees. The three safe harbors, described further below, are optional. An employer may apply one or more of the following safe harbor tests to determine the affordability of the coverage it offers to its employees.

  • Form W-2 Wages Safe Harbor: An employer may determine an employee's household income based on his or her wages as reported in Box 1 of the employee's Form(s) W-2, determined at the end of the calendar year. For an employee who is offered coverage for only part of the year, his or her Form(s) W-2 must be adjusted to reflect the months in which the employee received coverage. This adjustment is calculated by multiplying the wages in Box 1 by a fraction equal to the employee's months of coverage, divided by the employee's total months of employment. This safe harbor may be difficult to administer as the compensation is not determined until the year is over and the compensation is reduced by the employee's 401(k) or other tax deferral contributions and by pre-tax contributions to a cafeteria plan.
  • Rate of Pay Safe Harbor: This safe harbor is satisfied if the employee's required contribution to the lowest-cost, minimum value, self-only coverage does not exceed 9.5 percent of the employee's hourly rate of pay, multiplied by 130. For non-hourly employees, the required contribution cannot exceed 9.5 percent of the employee's monthly salary. The rate of pay used may not increase during the plan year.
  • Federal Poverty Line Safe Harbor: An employer satisfies this safe harbor if the employee's required contribution to the lowest-cost, minimum value, self-only coverage does not exceed 9.5 percent of the federal poverty line in effect 6 months before the first day of the plan year for a single individual, determined on a monthly basis. The federal poverty line currently in effect for a single individual is $11,670. Thus, the employee contribution rate under this safe harbor for a calendar year plan year beginning January 1, 2015, is $1,108.65 or $92.38 per month.

Changes to the Identification of Full-Time Employees

In our January 24, 2013 alert, we explained the rules for identifying which employees must be considered "full-time employees." This information is relevant for determining whether an employer must offer affordable, minimum value coverage to its full-time employees. The final regulations contain few changes to the rules discussed in our previous alert. Below are some minor variations addressed in the final rules.

  • Monthly Measurement Period: Both the proposed and final regulations provide that an employer will not be subject to penalties for failing to offer coverage to an employee who is expected to be a full-time employee for the first three months of his or her employment. The final regulations clarify that an employee who takes a short period of absence during the initial three month period must be treated as a continuing employee, unless the employee's period of absence exceeds 13 consecutive weeks (26 weeks for educational employees).
  • Change in employment status: Under the final regulations, an employer using the look-back measurement period to determine the full-time status of its employees may delay offering coverage to a variable-hour or seasonal employee who experiences a change in employment status within the initial measurement period. If the employee changes from seasonal or variable-rate employment to full-time status within the initial measurement period, the employer may delay offering coverage to the employee until the first day of the fourth calendar month following the employee's change in status.

Streamlined Insurer and Employer Information Reporting Rules

The IRS released final rules to implement the information reporting provisions for insurers and certain employers under ACA. The final rules attempt to streamline and simplify the ACA information reporting requirements.

First, in order to avoid duplicative reporting, the final rules provide that employers with 50 or more full-time equivalent employees will use a single, consolidated form (the Form 1095-C) to report information regarding health care coverage provided in 2015 to the IRS and their employees. Employers that have 50 or more full-time equivalent employees and that self-insure will complete both parts of the combined form. Employers that have 50 or more full-time equivalent employees but do not self-insure will complete only the top section of the combined form. (Employers that have fewer than 50 full-time equivalent employees are exempt from the employer reporting requirements.)

Second, in order to simplify reporting, the final rules also provide alternatives to reporting monthly, employee-specific information for certain employers with 50 or more full-time equivalent employees that offer health care coverage. If an employer offers "qualifying coverage" to full-time employees, employers will need to report only the names, addresses, and taxpayer identification numbers of those employees who received qualifying offers for all 12 months of the year. For those employees who receive a qualifying offer for fewer than all 12 months of the year, employers will be able to use a code for each of those months indicating a qualifying offer was made. For these purposes, qualifying offer means an offer of minimum value coverage that provides employee-only coverage at a cost to the employee of no more than 9.5 percent of the Federal Poverty Level combined with an offer of coverage for the employees' dependents and spouses. To provide for a phase-in of this simplified reporting option, the final rules permit employers to treat all full-time employees who received a qualifying offer in 2015 as receiving the offer for all 12 months of 2015 if the employer certifies that it made a qualifying offer to at least 95 percent of its full-time employees (plus dependents and spouses).

The final rules also give employers the option to avoid reporting and identifying which of its employees are full-time if the employer certifies that it offered affordable, minimum value coverage to at least 98 percent of its full-time employees. For this purpose, affordable coverage is determined using any of the three safe harbors (as described above).

If an employer is subject to the ACA reporting requirements, it must provide the information reporting of employer-sponsored coverage to full-time employees on or before January 31 of the year following the calendar year in which coverage is provided using either the Form 1095-C or a substitute employee statement for that full-time employee. The employer may furnish this information with the employee's Form W-2 or via electronic means if the employee affirmatively consents to receiving the statements electronically. The information returns must be filed with the IRS no later than February 28 (or March 31, if filed electronically) of the year immediately following the calendar year to which the return relates.

Reporting entities will be required to file the first reports in 2016 for health care coverage offered in 2015 in order to avoid penalties. Employers that have between 50-99 full-time employees and that meet the requirements for the delayed effective date must certify as part of their 2015 reporting that the requirements for the delay were met.

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.

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