By Claudine Swartz
Day Health Strategies
February 2013 – Since January, the federal government has been busy crafting regulations and guidance to ensure that many Affordable Care Act (ACA) provisions “go live” in 2014. Here are several highlights:
1. What will the HealthCare Marketplace look like?
The federal government released guidance (found at http://cciio.cms.gov/resources/files/partnership-guidance-01-03-2013.pdf) on how healthcare marketplaces or exchanges would look when states choose to “partner” with the feds to execute. This is important to Michigan, as it declared that it would operate a state-federal partnership exchange. In this model, the federal government oversees and operates the partnership exchange, but Michigan has the option to oversee certain functions. Ultimately, the feds hope the partnership exchange enables states to transition and launch their own healthcare exchange or marketplace.
In the partnership exchange, Michigan businesses will likely have the same purchasing options that they would under a Michigan-run marketplace. Michigan has the option to be the main point of contact for consumers, insurance carriers, and independent agents. The federal government will oversee all operational aspects of the marketplace including enrollment, eligibility, payment, and maintenance of the web portal.
2. How does a Michigan business know if it is subject to the employer penalty?
This issue is tough to keep up with as it is being addressed in several pieces. Fortunately, on Dec. 28, 2012, the Treasury Department and the IRS issued proposed regulations (found at http://www.irs.gov/pub/newsroom/reg-138006-12.pdf) on the ACA’s Employer Shared Responsibility. Comments are due by March 18, 2013. The federal government also issued a simplified Q&A document (found at http://www.irs.gov/uac/Newsroom/Questions-and-Answers-on-Employer-Shared-Responsibility-Provisions-Under-the-Affordable-Care-Act). Below is a sampling of key issues addressed:
• How does an employer know if the employee health benefits offered are “affordable?” In late January, the Department of the Treasury issued a final regulation (see http://www.ofr.gov/OFRUpload/OFRData/2013-02136_PI.pdf) detailing who qualifies for federal subsides to purchase health insurance via the marketplace. This information is critical to determining whether a Michigan business is subject to the health insurance penalty. A penalty is in play if a business has 50 or more employees and at least one receives federal subsidies via the exchange. But, this penalty is imposed only when an employer fails to offer minimum, affordable coverage or does not offer coverage at all. How do you measure this? Well, we know the ACA defines affordable coverage as that where the employee pays no more than 9.5 percent of their modified adjusted gross income. In this guidance, the federal government clarifies that the employer is only on the hook for affordable employee-only coverage not family coverage.
The feds also clarified that employers may use an employee’s W-2 as the basis for gross income and affordability calculations. This allows employers to evaluate whether the coverage offered is sufficient.
• How does an employer know whether it offers minimum coverage? The federal government plans to create a minimum value calculator that allows employers to answer this question. This calculator will allow businesses to input info about the employee benefit plan (deductibles and co-pays) to determine if it covers at least 60 percent of total expect costs. This is the standard for minimum coverage.
3. How can employers use Health Reimbursement Accounts (HRAs) in the future?
The ACA prohibits annual dollar coverage on healthcare benefits. This is a problem for HRAs as they are limited contributions on a pre-tax basis that employers often use to help employees purchase individual health coverage. In 2010, the federal government clarified that when HRAs are offered on an integrated basis with a health benefits plan, they do not violate the ACA’s annual limit prohibition. However, it was still unclear whether employers could offer HRAs independent of a health benefits plan. The Department of Labor addressed this issue (among others) in a recent FAQ (see http://www.dol.gov/ebsa/faqs/faq-aca11.html), stating that HRAs would violate the ACA if offered on a stand-alone basis. Keep in mind that this issue is not completely resolved; regulations will be issued soon. (Editor’s note: All the Dept. of Labor FAQs are on our website in the Compliance Tools section, under FAQs.)
4. When must businesses notify employees of the healthcare marketplace or exchange?
While the ACA states that this must happen by March 1, 2013, the Department of Labor has suspended this requirement in a recent FAQ (see http://www.dol.gov/ebsa/faqs/faq-aca11.html). Why? Well, the federal government has not yet issued regulations on the topic. Stay tuned for updates.
5. What happens if a Michigan business wants to offer employee health insurance, but doesn’t want to cover contraception?
The federal government recently spoke out again on this controversial issue, releasing a proposed regulation (see http://www.ofr.gov/OFRUpload/OFRData/2013-02420_PI.pdf) and fact sheet (see http://cciio.cms.gov/resources/factsheets/womens-preven-02012013.html). Generally churches are already exempt from providing contraception services, but what about nonprofit religious organizations that object to contraceptive coverage? The federal government proposed in this regulation that an eligible organization would self-certify to a health insurer and the insurer would automatically provide separate, individual market contraceptive coverage at no cost for plan participants. As a result, the contraception coverage would not come directly from the religious organization that objects to that coverage.
There is no exemption for businesses that philosophically oppose contraceptive services. Keep in mind this is a proposed regulation and open for comment until March 2013 before final guidance is provided.
Claudine Swartz is a Senior Consultant at Day Health Strategies. She is a health care policy and government affairs consultant with nearly 20 years of experience. Swartz has worked throughout the health care industry, helping providers, payers, and stakeholders understand and influence complicated healthcare policies and develop related business strategies. She has worked directly for the University of California Health System, the National Association of Public Hospitals, and Delta Dental of Massachusetts.