April 2013 – On April 3, 2013, HHS issued proposed regulations that would create standards for Navigator and non-Navigator assistance personnel in Federally Facilitated Exchanges (FFEs) (including state partnership Exchanges) and for federally funded non-Navigator assistance personnel in state-based Exchanges.
These proposed regulations will clarify that any Navigator licensing, certification, or other standards prescribed by the state or Exchange must not prevent the application of the Affordable Care Act. The proposed regulations will also clarify that a Navigator cannot be an issuer of, or a subsidiary of an issuer of, stop loss insurance, and cannot receive any consideration, directly or indirectly, from an issuer of stop loss insurance in connection with the enrollment of any individuals or employees in a QHP or a non-QHP. These proposed regulations will be applicable to Navigators in all Exchanges, including Federally Facilitated Exchanges, state partnership Exchanges, and state-based Exchanges.
Second, the proposed regulations will establish conflict of interest, training, and accessibility standards applicable to Navigator and non-Navigator assistance personnel in Federally Facilitated Exchanges, including state partnership Exchanges. These standards will apply to non-Navigator assistance programs and personnel in state-based Exchanges that are funded through federal Exchange Establishment grants.
The proposed regulations provide details on the set of conflict of interest standards applicable to these Navigator and non-Navigator personnel. They will also establish that the non-Navigator assistance personnel described above must comply with the same set of conflict of interest prohibitions that apply to Navigators. There will be standards related to training, certification, and recertification for these Navigator and non-Navigator personnel. These standards include details about the requirement to be certified, to register and receive training, the content required for training, and the requirement to receive a passing score on all HHS-approved certification examinations after training. In addition, standards will be established for these Navigator and non-Navigator personnel to ensure meaningful access to their services by individuals with limited English proficiency and people with disabilities.
State-based Exchanges will not be required to use the standards proposed in regulations for their Navigators, or for non-Navigator assistance programs not funded through Exchange Establishment grants. However, HHS believes that state-based Exchanges may find the federal standards to be useful models, and could draw upon them as they develop and disseminate conflict of interest and training standards for Navigators or when establishing standards for any non-Navigator assistance program that is established by the state-based Exchange that is not funded by federal Exchange Establishment grants.
In addition, while the conflict of interest, training and meaningful access standards that are now being proposed will apply to the Navigator and non-Navigator assistance personnel described above, HHS has not proposed that the standards would also apply to certified application counselors. Certified application counselors have been proposed as an additional source of consumer assistance, required in every Exchange in separate regulations, but that rule has not yet been finalized. HHS has, however, requested public comments regarding whether all or some of the standards being proposed for Navigator and non-Navigator assistance personnel in this proposed regulation shall also apply to certified application counselors in the event that every Exchange is required to establish a certified application counselor program after publication of final regulations.
Larry Grudzien is an attorney practicing exclusively in the field of employee benefits. He has experience in dealing with qualified plans, health and welfare, fringe benefits and executive compensation areas. He has more than 35 years of experience in employee benefit law and is an adjunct faculty member of John Marshall Law School’s LL.M. program in employee benefits and at the Valparaiso University School of Law, where he teaches a number of courses.
https://mb-wp-uploads.s3.us-east-1.amazonaws.com/2024/04/MichBusiness-logo.png00michbusinesshttps://mb-wp-uploads.s3.us-east-1.amazonaws.com/2024/04/MichBusiness-logo.pngmichbusiness2013-04-29 17:00:002015-10-08 00:00:00HHS Issues Proposed Regulations Relating to Standards for Exchange Navigators
March 2013 – On January 17, 2013, the Department of Health and Human Services released final regulations which provided sweeping changes to the rules update under privacy, security, enforcement, and breach notification requirements of the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic Health (HITECH) and Genetic Information Nondiscrimination Act (GINA).
Group health plans and business associates are required to comply with the regulations by September 23, 2013, unless otherwise stated in the regulations. With respect to the requirements on breaches of unsecured Protected Health Information (PHI), group health plans must still comply with the September 23, 2009 date. The following is a summary of the important changes under these final regulations.
1. Business Associates
Definition of Business Associate
Several updates and clarifications to the HIPAA definition of Business Associates (BA) have been included.
A person or entity becomes a BA by (i) meeting the definition of a BA and (ii) creating, receiving, maintaining, or transmitting PHI on behalf of a covered entity. Whether or not such person or entity has contracted with the covered entity and/or has entered into a Business Associate Agreement (BAA) is not determinative. Additionally, the type of PHI involved in the transaction does not matter — information is considered PHI if the information is related to a covered entity.
The definition of BAs also include:
• health information organizations;
• e-prescribing gateways;
• other entities that provide data transmission services with respect to PHI to a covered entity and that require routine access to PHI;
• entities that offers a personal health record to one or more individuals on behalf of a covered entity; and
• entities that maintain PHI, whether or not the entities actually review the PHI.
Subcontractors of BAs
The HIPAA’s BA provisions also apply to BAs’ subcontractors (persons or entities that provide services to a BA which involves PHI to fulfill its contractual duties) if the subcontractors create, receive, maintain, or transmit PHI on behalf of BAs. Group health plans are not required to enter into Business Associate Agreements (BAAs) with subcontractors, but the BAA must contain provisions that BAs will ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the BA agree to the same HIPAA restrictions, conditions, and requirements that apply to the BA.
Additional Clarifications Regarding BAs
• Banking and financial institutions are not BAs with respect to payment process activities, as identified in § 1179 of HIPAA, but if the bank or financial institution’s scope of activities exceeds the payment process activities, it will be considered a BA.
• Patient safety activities were added to the list of functions that may be undertaken as a BA and were added to the definition of health care operations.
• An insurer of a health plan product or insurance policy that is purchased by a covered entity is not a BA of the covered entity just by providing the insurance or product. In order to be considered a BA, the insurer must perform a function that involves PHI.
Direct Liability
BAs are now directly liable for complying with certain HIPAA privacy and security rules:
• Impermissible use and disclosure of PHI
• Failure to provide breach notification to a covered entity
• Failure to disclose PHI when required
• Failure to provide access to electronic PHI to an individual, his/her designee or a covered entity
• Failure to provide to a covered entity an accounting of disclosures
• Failure to comply with HIPAA security rules contained in 45 C.F.R. §§ 164.306, 164.308, 164.310, 164.312, and 164.314
• Failure to comply with the requirements relating to policies, procedures and documentation requirements of 45 C.F.R. § 164.316
• Failure to establish BAAs with subcontractors
2. Business Associate Agreements (BAA)
All Business Associate Agreements must be amended to include:
• Provisions requiring BAs to comply with the HIPAA security rule
• Provisions requiring BAs to report breaches involving unsecured PHI to covered entities
• Provisions requiring BAs to obtain satisfactory assurances that subcontracts agree to comply with the underlying BAA’s conditions and restrictions as applied to PHI
Additionally, the final regulations do remove the requirement that BAAs include a provision that required covered entities to report to the Department of Health and Human Services when a BA was out-of-compliance, was not able to cure the breach, and it was not possible to terminate the BAA between the covered entity and the BA.
The final regulations also provide for a grandfathered transition period for updating BAAs. If a HIPAA-compliant BAA was in effect prior to January 25, 2013 and is not renewed or modified between March 26, 2013, and September 23, 2013, the covered entity and BA may continue to operate under the current BAA for up to one year past the final regulation compliance date. That is, the BAA does not have to be amended until the earlier of: (1) the date the BAA is renewed or modified on or after September 23, 20133 or (2) September 22, 2014. This extension for compliance also applies to BAAs that contain automatic renewal provisions.
3. Notice of Privacy Practices
Notices of Privacy Practices (“NPP”) must now be amended to include the following information (in addition to the existing HIPAA requirements):
• A statement indicating that most uses and disclosures of psychotherapy notes (where appropriate), uses and disclosures of PHI for marketing purposes, and disclosures that constitute a sale of PHI require authorization;
• A statement that an individual has a right to or will receive notifications of breaches of his or her unsecured PHI;
• If the plan intends to use or disclose PHI for underwriting purposes, a statement that the plan is prohibited from using or disclosing PHI that is genetic information of an individual for such purposes; and
• If the plan intends to contact an individual to raise funds for the plan, a statement regarding fundraising communications and an individual’s right to opt out of receiving such communications.
For group health plans that post the NPP on their websites, the final regulations require that these plans must prominently post the changes or a revised Notice of Privacy Practices on websites by the September 23, 2013 compliance date; and provide the revised Notices of Privacy Practices, or information about the changes and how to obtain the revised Notices of Privacy Practices, in their next annual mailings to individuals then covered by the plans, such as at the beginning of the plan year or during open enrollment.
4. Breach Notification
Definition of Breach
The definition of what constitutes a breach has been changed. Breach is now defined as the acquisition, access, use or disclosure of PHI in a manner not permitted by the Privacy Rule which compromises the security or privacy of such information. However, the final regulations made no change to the existing exceptions to the definition of breach.
With the change to the definition of breach, the previously used risk of harm standard has been replaced with the rule that, unless one of the enumerated exceptions is applicable, an unauthorized use or disclosure of PHI is presumed to be a breach. To overcome the presumption, a covered entity or BA must show that there is a “low probability that the PHI has been compromised.”
In support of this, the final regulations also identified four factors that must be evaluated by a covered entity or BA when determining whether PHI has been compromised:
1. What is the nature and extent of the PHI involved in the potential breach,
2. Who was the unauthorized user or recipient of the PHI,
3. Was the PHI actually received or viewed by the unauthorized user or recipient, and
4. To what extent has the breached PHI been mitigated.
The above four factors of the risk assessment are not determinative. Other factors may also need to be considered, depending on the individual circumstances of the breach. The risk assessment performed and conclusions reached by the covered entity or BA should be documented.
Additionally, the definition of breach has been changed by removing the exception for limited data sets that do not contain any dates of birth and zip codes.
Notice Requirements
Only a few changes have made to o the breach notice requirements. These include:
• A covered entity must notify the Department of Health and Human Services of all breaches affecting fewer than 500 individuals not later than 60 days after the end of the calendar year in which the breach was discovered rather than when the breach occurred
• Covered entities may delegate responsibility for breach notifications to a BA provided the BAA provisions provide that the BA has the same obligations that the covered entity has under the final regulations
• The plan is not required to incur costs to print or run a media notice, when it must provide notice of a breach to the media (i.e., breaches involving 500+ individuals in a state or jurisdiction). Also, media outlets are not obligated to print or run information about breaches when they receive notifications about them.
• The plan must provide notice within 60 days after the plan discovers the breach (rather than 60 days after the breach occurred), when the notice of a breach affects fewer than 500 individuals.
For this purpose, discovery means the first day on which an employee, officer other agent of the covered entity or BA knows or should know by exercising reasonable diligence of the breach.
5. Use and Disclosure of PHI
Use and Disclosure of PHI for Marketing Purposes
Individuals must now provide authorizations for certain communications where covered entities use or disclose PHI and receive financial remuneration for making the communications from a third party whose product or service is being marketed.
The Department of Health and Human Services clarified that remuneration related to marketing communications must be from or on behalf of the entity whose product or service is being described as well as it being in exchange for making the communication itself. Even if a BA, rather than the covered entity, receives the payment, the communication would be considered a marketing communication.
A covered entity must obtain an individual’s authorization prior to using or disclosing PHI about the individual for marketing purpose other than the following:
• treatment or health care operations activities that are made face-to-face, or
• The provision of a promotional gift of nominal value to the individual.
The definition of marketing does not include:
• refill reminders or other communications about a drug that is currently prescribed for the individual, as long as the financial remuneration received is reasonably related to the cost of making the communication
• promoting health in general, not promoting a specific product or service
• information related to government and government-sponsored programs
Use of PHI for Fundraising Purposes
If a covered entity (or a BA), uses an individual’s PHI for purposes of raising funds, the communication’s recipient must be provided with a “clear and conspicuous” opportunity to opt out of receiving any further fundraising communications. The method for “opting out” is left up to the covered entity to determine. However, the opt-out process may not create undue burden or more than nominal cost for the individual.
The use and disclosure of the following types of PHI can be used for fundraising:
• Demographic information relating to an individual,
• Dates of health care provided to an individual,
• Department of service information,
• Outcome information, and
• Health insurance status
However, the rule that when using PHI to make fundraising communications, the minimum necessary standard still applies and only the minimum amount of PHI necessary to accomplish the intended purpose may be used or disclosed is still applicable.
Prohibition on Sale of PHI
A covered entity or BA is only allowed to receive remuneration (direct or indirect) in exchange for the disclosure of PHI if an individual’s authorization is granted. The authorization must state that direct or indirect remuneration is being received in exchange for the PHI, unless an allowed exception applies. Sale of protected health information is defined as the disclosure of PHI by a covered entity or BA, where the entity or BA directly or indirectly receives remuneration from or on behalf of the recipient of the PHI in exchange for the PHI. The exceptions to the prohibition of the sale of PHI are:
• For public health purposes
• For treatment of the individual and payment purposes.
• For the sale, transfer, merger or consolidation of all or part of a covered entity and for related due diligence purposes if the recipient of the PHI is or will become a covered entity
• For research purposes, if the remuneration is cost-based
• Services rendered by a BAA under a BAA at the specific request of the covered entity, as long as the remuneration is cost-based
• Providing an individual with access to the individual’s PHI
• As required by law
• For any other purpose permitted by HIPAA
Other Changes to Use and Disclosure of PHI
PHI stored in electronic devices such as photocopiers, fax machines, and other devices is now subject to the Privacy and Security Rules.
Covered entities are now permitted to disclose decedents’ PHI to family members and others who were involved in decedents’ care or payment for care prior to death, unless the covered entities know that such disclosure would be inconsistent with the decedents’ prior expressed wishes. If such disclosure will be allowed by the covered entity, it must be limited to PHI relevant to the family members or other persons’ involvement in the decedents’ health care or payment for health care.
Additionally, a covered entity may disclose proof of immunizations to schools in states that have laws that require the school to have such information prior to admitting a student. Although written authorization for the disclosure is not required, it is encouraged.
6. Changes to Patient Rights
Right to Access Protected Health Information
If individuals requests electronic copies of PHI that are maintained electronically in one or more designated record sets, covered entities must now provide access to the information in the electronic form and format requested by the individual, if readily producible.
If not readily producible, covered entities must provide the PHI in a readable electronic form and format which is agreed to by the covered entities and the individual, such as Word, Excel, text, HTML, or text-based PDF. Additionally, the final regulations provide:
• A plan must respond to such a request within 30 days of the request, with a one-time 30-day extension when necessary. If a plan takes the 30-day extension, it must provide written notice to the individual of the reasons for delay and the expected date for completing the request.
• If an individual declines any readily producible electronic format, the plan must provide a hard copy as an option.
• A plan can require individuals to make these requests for PHI in writing.
• A plan is not required to scan paper documents to provide electronic copies.
• If requested, a plan must transmit the copy of PHI directly to another person designated by the individual who is the subject of the PHI. If an individual directs the plan to send a copy of PHI to another person, the request must be in writing, signed by the individual, and clearly identify the designated person and where to send the PHI. The plan must implement reasonable policies and procedures to verify the identity of any person who requests PHI and implement reasonable safeguards to protect the information used or disclosed.
• With respect to PHI from an electronic health record in electronic form, a plan cannot charge more than labor costs in responding to an individual’s request. These costs may include skilled technical staff time spent to create and copy the electronic file or time spent preparing and explanation or summary of the PHI, if appropriate. A plan also can charge for the cost of supplies (such as CDs or USB drives) for creating the copy of PHI, if the individual requests the electronic copy on portable media, and associated postage.
Restrictions on Disclosures by Health Plans
The processes surrounding the requirement that covered entities must comply with an individual’s request to restrict disclosure of PHI to a health plan if certain conditions are met have been clarified. Under the final regulations:
• Health providers are not required to maintain separate medical records when a request to restrict disclosure is made, but they are required to use some method to identify which portions of the medical records are subject to the restriction request.
• If a restriction is requested where payment is pending, health providers must either make reasonable efforts at resolving the payment issues before disclosing PHI or should request payment in full at the time of the requested restriction.
• If an individual requests a restriction, it is the individual’s responsibility – not the health providers – to notify any other providers who might be impacted.
• HMO contractual requirements do not negate a provider’s responsibility to adhere to a request to restrict disclosures.
7. Penalties
Consequences of Noncompliance
The final regulations significantly increase covered entities and BAs potential exposure to civil monetary penalties and creates uncertain risk. First, covered entities and BAs will be liable under federal common law of the acts of their agents.
Next, the assessment of penalties will be left to fact specific analyses and the Department of Health and Human Services’ discretion. There are four categories of HIPAAA violations that reflect increasing levels of culpabilities accompanied by four tiers of significantly increased monetary penalties. These include:
Tier 1: For violations in which it is established that the covered entity of BA did not know and, by exercising reasonable diligence, would not have known that the covered entity violated a provision, an amount not less than $100 or more than $50,000 for each violation
Tier 2: For a violation in which it is established that the violation was due to reasonable cause and not to willful neglect, an amount not less than $1000 or more than $50,000 for each violation
Tier 3: For a violation in which it is established that the violation was due to willful neglect and was timely corrected, an amount not less than $10,000 or more than $50,000 for each violation
Tier 4: For a violation in which it is established that the violation was due to willful neglect and was not timely corrected, an amount not less than $50,000 for each violation
A penalty for violations of the same tier will not exceed $1.5 million in a calendar year, but multiple violations of multiple requirements may be subject to the maximum penalty of $1.5 million times the number of requirements violated.
The maximum penalty amount will not necessarily be levied in all cases. There will be a determination based on factors including but not limited to: the nature and extent of the violation; the harm resulting from the violation; prior offenses or compliance of the entity involved; and the financial condition of the entity.
The final regulations provide insight into the application of penalties. In the case of a breach that affects multiple individuals, the number of violations will be based on the number of individuals affected. In the case of a breach that is continuous over a period of time, the number of violations will be based on the number of days that the entity did not have the breached information sufficiently protected. In the case of a breach involving violations of two or more provisions, a separate calculation may be made for each provision breached.
Increased penalty amounts may be levied if the violation due to willful neglect is not corrected within 30 days. Under the final regulations, for violations involving willful neglect, additional penalties may be assessed if the entity does not correct within 30 days. The 30 days begins to run when the entity first has actual or constructive knowledge of a violation due to willful neglect.
8. GINA Implementation
The Department of Health and Human Services’ proposals have be adopted to:
• Provide that genetic information is considered health information for purposes of HIPAA privacy rules and therefore subject to HIPAA privacy requirements;
• Prohibit all health plans that are subject to HIPAA privacy rules from using or disclosing PHI that is genetic information for underwriting purposes (except with regard to insurance issuers of long term care policies);
• Revise the HIPAA requirements relating to Notices of Privacy Practices for health plans that perform underwriting;
• Make conforming changes to definitions and other provisions of the HIPAA privacy rules; and
• Make technical corrections.
For a copy of the final regulations, please click on the link below:
Larry Grudzien is an attorney practicing exclusively in the field of employee benefits. He has experience in dealing with qualified plans, health and welfare, fringe benefits and executive compensation areas. He has more than 35 years of experience in employee benefit law and is an adjunct faculty member of John Marshall Law School’s LL.M. program in employee benefits and at the Valparaiso University School of Law, where he teaches a number of courses.
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March 2013 – The Patient Protection and Affordable Care Act (PPACA) has had a significant impact on the way in which employers and plan sponsors will administer their health plans. One of the more hotly debated issues involves the definition of “full-time employee” for purposes of PPACA. This definition directly impacts several important PPACA provisions, including the determination of applicable large employer status, employer shared responsibility penalty determinations and calculations and future automatic enrollment provisions.
Under PPACA, a “full-time employee” is defined as an employee who was employed on average at least 30 hours of service per week (or the monthly equivalent of 130 hours of service in a calendar month). This is a departure from what many employers have historically considered to be full-time, which was typically 36-40 hours per week. Despite a high volume of public concern and comment from the employer and plan sponsor community, the recently released proposed regulations relating to the employer shared responsibility provisions clarified that the Agencies opted to retain the 30 hours per week threshold.
An important item to note is that the most recent guidance clarified that the definition has changed from 30 or more hours worked per week (as was indicated in previous guidance) to 30 or more hours of service per week (or 130 hours of service per month). When determining an employee’s hours of service an employer must consider not only hours when work is performed, but also hours for which an employee is paid or entitled to payment even when no work is performed (vacation, holiday, illness, incapacity/disability, layoff, jury duty, military duty or leave of absence). The general rule is that all periods of paid leave must be counted (and not unpaid leaves). However, the proposed regulations also provide that periods of “special unpaid leave” must be counted towards hours of service. “Special unpaid leaves” refers to leaves of absence under the Family and Medical Leave Act of 1993 (FMLA), as amended, and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), as well as any unpaid leave on account of jury duty.
While the definition of full-time employee is uniform for all employer shared responsibility provision purposes under PPACA, the way in which an employer is permitted to count/measure the number of full-time employees differs for purposes of determining applicable large employer status and for purposes of employer shared responsibility penalty calculations. The determination of who is a full-time employee for purposes of the employer shared responsibility provisions involves complex rules and analysis. Therefore, employers should carefully review their workforce to determine which employees may be considered to be full-time for purposes of PPACA and work closely with their benefits consultants and legal counsel in order to be prepared for the fast approaching 2014 effective date.
*This article is not intended to give legal advice. It is comprised of general information. Employers facing specific issues should seek the assistance of legal counsel.
Kristi R. Gauthier is a senior attorney in Clark Hill’s Birmingham office and concentrates her practice in Employee Benefits Law. Kristi has represented clients in a wide variety of employee benefits issues involving health and welfare benefits, as well as retirement plans. Kristi is admitted to practice in the State of Michigan, the U.S. District Court for the Eastern District of Michigan, and the U.S. Sixth Circuit Court of Appeals. She also is active in the legal community with memberships in the American Bar Association, the State Bar of Michigan, and the Oakland County Bar Association where she is a member of the Employee Benefits Committee. Kristi also serves as a member of the Clark Hill Diversity and Inclusion Committee. Kristi has lectured on various employee benefits issues, including ERISA compliance, healthcare reform, COBRA, section 125 plans, 403(b) plans and IRS plan correction programs. Kristi is also a co-author of the ABA publication ERISA Survey of Federal Circuits. Kristi was named a “Rising Star” by Michigan Super Lawyers in 2011.
https://mb-wp-uploads.s3.us-east-1.amazonaws.com/2024/04/MichBusiness-logo.png00michbusinesshttps://mb-wp-uploads.s3.us-east-1.amazonaws.com/2024/04/MichBusiness-logo.pngmichbusiness2013-03-25 17:08:302015-10-08 00:00:00The Definition of Full-Time Employee Under PPACA: A Departure From the Norm
May 2013 – The federal government continues to issue regulations and guidance to ensure that many Affordable Care Act (ACA) provisions “go live” in 2014. The focus has been two issues critical to MBPA members:
The role of agents in the health care marketplace; and
How navigators will help small businesses and individuals access health coverage.
Here’s what’s happening:
An agent’s role in the new federal health marketplace:
On May 1, 2013, the Centers for Medicare and Medicaid Services (CMS) released a document called “Health Insurance Marketplace Guidance” to further describe the role of agents and web brokers in the federal health insurance marketplace. Generally, this guidance describes two pathways that agents may use to assist individuals and small employers with initial enrollment and changes throughout the year:
Via the federal health insurance marketplace website: Here, the agent works with consumers to complete eligibility, compare health plans on the marketplace website and submit the consumer’s selection. Agents who enroll employers through the federal small business marketplace are expected to remain in contact with employers to provide customer services (such as enrolling employees).
Via an insurer: Here the agent uses a carrier’s website to assist individuals; this option is not available for enrolling small businesses. Insurance carriers appoint agents to work on their behalf. Interestingly, the agent need only provide qualified health plan information for carriers that they have a business relationship with, after disclosing that consumers can access additional plan information via the federal health insurance marketplace website.
While states will continue to license agents, the feds require agents assisting individuals to register with CMS and receive training. However, agents who assist small employers in enrolling through the federal small business exchange are not required to register with CMS or complete training. Regarding compensation, the federal marketplace will not pay commissions to agents; it is expected that these fees will be negotiated between agents and insurers.
With regard to web brokers, the federal exchange will work with web brokers to the extent that individual sates permit this. Essentially, consumers could then start shopping on a web broker site, go to the federal marketplace for eligibility screening, and then go back to the web broker site to choose and enroll in a plan. Web brokers must display all QHP options, rather than only one issuer.
Employers and minimum health coverage
You’ll recall that a penalty materializes when a large employer does not offer minimum affordable health coverage and an employee accesses a premium tax credit through the exchange. To date, the feds have defined minimum coverage as covering 60 percent of total benefit costs provided under the plan; a May 3 proposed regulation dives deeper to ensure employers know when they are in compliance.
There are several ways ways an employer can validate that their plan offers minimum value:
For a small group plan, employers can ensure minimum value by purchasing a bronze level plan.
Employers may use the HHS minimum value calculator.
For a non-standard plan, employer may have an actuary who is a member of the American Academy of Actuaries certify the plan.
Employers may use one of three safe harbors to ensure minimum value: 1) A plan with a $3,500 integrated medical and drug deductible, 80 percent cost-sharing, and a $5,000 maximum out-of-pocket limit; 2) A plan with a $4,500 integrated medical and drug deductible, 70 percent cost sharing, a $6,400 maximum out-of-pocket limit, and a $500 employer contribution to an HSA; or 3) A plan with a $3,500 medical deductible, $0 drug deductible, 60 percent medical cost sharing, a $10/$20/$50 copay tiered drug plan, and a 75 percent coinsurance for specialty drugs.
Keep in mind this proposal is not final. MBPA will update you on any changes in the final regulation.
An opportunity to help consumers navigate the new marketplace:
The federal government announced that $54 million is available to fund navigator programs for 33 states using the federal exchange; additionally proposed regulatory guidance on navigators was issued. This announcement received considerable heat, with many wondering if the funding is sufficient to bring consumers up to speed before open enrollment begins this October. In Michigan, $1.9 million is available; this funding calculation is based on the state’s uninsured count. To access funding, potential navigators must file applications by June 7; awards will be made on August 15. Click here for the application.
Navigator responsibilities are defined in the ACA. Navigators are required to:
Conduct public education activities to raise awareness of the availability of qualified health plans;
Distribute fair and impartial information concerning enrollment in qualified health plans and the availability of premium tax credits;
Facilitate enrollment in qualified health plans;
Provide referrals to any applicable office of health insurance consumer assistance or health insurance ombudsman other appropriate State agency or agencies, for any enrollee with a grievance, complaint, or question regarding their health plan, coverage, or a determination under such plan or coverage; and
Provide information in a manner that is culturally and linguistically appropriate to the needs of the population being served.
All navigators must demonstrate existing relationships or the ability to quickly establish relationships with individuals and small businesses that need assistance enrolling in QHPs. Eligible navigators include:
Licensed agents and brokers;
Trade, industry, and professional associations;
Commercial fishing industry, ranching, and farming organizations;
Community and consumer-focused nonprofit groups;
Chambers of commerce and Small Business Administration partners;
Unions; and
Others.
The following are ineligible to become navigators:
Health insurance issuer
Anyone receiving compensation directly or indirectly from an insurance issuer
Entities receiving any consideration from health plan (i.e., cannot receive payment for enrolling in QHP)
Entities with relationships to issuers of stop loss insurance, including those who are compensated directly or indirectly by issuers of stop loss insurance in connection with enrollment in QHP or non-QHPs
Each state will have a minimum of two navigators, one of which must be a community based nonprofit organization. Navigators may choose to concentrate only on assisting individuals or small businesses; however, navigators cannot also sell qualified health plans.
The regulation requires Navigators to have expertise in eligibility and enrollment rules and the needs of underserved and vulnerable populations, including the ability to provide culturally competency. Navigators must complete 30 hours of an HHS-developed training program and pass an exam.
Stakeholder engagement & public hearings
The feds increasingly invest resources to ensure that the public and key stakeholders understand the health policies that go into effect January 1, 2014. First, the feds held stakeholder engagement conference calls with all states using the federal exchange, including Michigan.
Second, a public hearing was held in Washington to discuss the calculation of penalties for large employers subject to this fine. We expect final regulations to be issued after the feds incorporate feedback received in late April.
Employer reporting guidance
Employers are required to report key information to employees about health reform implementation. The Department of Labor released guidance on May 8 to facilitate communication. The agency also issued a model employee notice for employers who intend to offer insurance and employers who will not offer insurance. Employees must be notified by October 1.
Employers are required to communicate the following:
• Employees have the option to purchase insurance via the new health care marketplace and may be eligible for premium subsidies.
• Employees risk losing the employer contribution to health care benefits if they purchase insurance via the marketplace.
• If employee coverage is offered, confirmation that the plan meets a minimum standard.
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 health care 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.
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February 2013 – One of the new notices requirements the Patient Protection and Affordable Care Act (PPACA) imposes on employers is the Notice of Coverage Options Available through the Exchanges (Notice).
What is the Purpose of this Notice? The purpose of the Notice is to:
Inform the employee of the existence of state Exchanges under PPACA including a description of the services provided by the state Exchanges, and the manner in which the employee may contact the state Exchanges to request assistance;
If the employer’s plan does not provide minimum value (as defined by PPACA), notify the employee that he/she might be eligible for a premium tax credit if the employee purchases health coverage on a state Exchange; and
Notify the employee that if he/she purchases health coverage on a state Exchange, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for Federal income tax purposes.
According to recently released Department of Labor FAQs, the Department of Labor is considering providing model language for use by employers to satisfy the Notice requirement. Future guidance on compliance with the Notice requirement is expected to provide employers with flexibility and adequate time to comply.
When Must the Notice Be Distributed? Originally, employers were to provide this Notice to all current employees no later than March 1, 2013, and to all new employees at the time of hire. The Departments of Health and Human Services, Treasury, and Labor have extended the deadline for issuance of this Notice until further guidance issued, which is expected to be late summer or fall of 2013.
While the deadline for distribution of this Notice has been temporarily delayed, employers should still keep this on their PPACA 2013 compliance radar.
*This article is not intended to give legal advice. It is comprised of general information. Employers facing specific issues should seek the assistance of legal counsel.
Kristi R. Gauthier is a senior attorney in Clark Hill’s Birmingham office and concentrates her practice in Employee Benefits Law. Kristi has represented clients in a wide variety of employee benefits issues involving health and welfare benefits, as well as retirement plans. Kristi is admitted to practice in the State of Michigan, the U.S. District Court for the Eastern District of Michigan, and the U.S. Sixth Circuit Court of Appeals. She also is active in the legal community with memberships in the American Bar Association, the State Bar of Michigan, and the Oakland County Bar Association where she is a member of the Employee Benefits Committee. Kristi also serves as a member of the Clark Hill Diversity and Inclusion Committee. Kristi has lectured on various employee benefits issues, including ERISA compliance, healthcare reform, COBRA, section 125 plans, 403(b) plans and IRS plan correction programs. Kristi is also a co-author of the ABA publication ERISA Survey of Federal Circuits. Kristi was named a “Rising Star” by Michigan Super Lawyers in 2011.
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February 2013 – It’s hard to believe we are nearing the three-year mark of President Obama’s signing of the Patient Protection and Affordable Care Act of 2010 (PPACA). Even more concerning is the fact that this piece of legislation appears to still have some surprises in store for us all. For those of you who may not have heard, the news outlets have been buzzing about a new Obamacare charge hidden in recent regulations. As this Act continues to evolve, it is important to keep up with the most recent changes as well as highlighting some other “stealth fees” that you may not yet be aware of.
A new health insurance fee; what it is and what it means to your business As business owners/managers of a company that offers health insurance to its employees, few of us enjoy surprises, right? Especially the ones that will cost money! Well, unfortunately, the following likely won’t make you too happy. Within PPACA, there is an annual fee of $63 per insured that goes into effect January 1, 2014. While this fee will be charged to health insurance plans, it is a virtual certainty that the fee will be passed down to businesses that subscribe to the insurance. I know what you’re thinking: what is this fee for? As you may know, PPACA contains the requirement that health plans cover individuals with pre-existing conditions. The additional fees (which are anticipated to be upwards of $12 billion in 2014) are intended to be put in a fund to help individual and small-group health plans and health insurance companies deal with the costs of pre-existing conditions. Luckily, absent additional legislation extending the fee, it will be phased out by 2017.
Upcoming nutritional disclosures in the food industry Have you recently treated yourself at your favorite fast food only to be disheartened by the caloric information staring you in the face? Well if so, you’d better get used to it. The Food and Drug Administration is in the very last stages of finalizing details, but it is expected that late this year nutritional information will be mandatory for restaurants with 20 or more locations. Although the impact will mostly be felt by franchises, owners of vending machines, mall kiosks, and many other types of food vendors will be affected. Existing legislation will require caloric information on all menus, display boards and drive-thru menus, and will require calories-per-serving signs in buffet-style or self-serve restaurants. The costs associated with reconfiguring this physical media are only the beginning. Additionally, information including items such as saturated fat, sodium, carbohydrates, etc. must be available in printed form upon request. Lastly, consider the expense to have menu items’ nutritional content analyzed. These additional costs will be something to think about for those of you in or directly impacted by the narrow-margin food industry.
Excise tax on “Cadillac Health Insurance Plans” There’s still plenty of time to avoid this one, but beginning in 2018, employers offering “Cadillac plans” will be hit with an additional excise tax. The term “Cadillac,” as you might imagine, refers to expensive, high coverage plans. Expensive, as defined by the government, means plans with annual costs in excess of $10,200 for individuals and $27,500 for families in 2018, with inflationary adjustments starting in 2020. Employers offering these kinds of plans will be assessed a 40% excise tax on the amount the plans’ costs in excess of these thresholds.
Conclusion With all of these changes, it is prudent to begin thinking about how they will affect your business, financially and otherwise. It is highly recommended that you discuss your particular situation with professionals such as your health benefits advisor, attorney and CPA.
With extensive experience providing financial solutions to clients – from business operation & efficiency assessments to consulting & corporate tax guidance – Don McAnelly is ideally positioned to provide the support today’s businesses need. Don serves as Rehmann’s primary CPA contact for health care clients in East Michigan and his experience extends to tax, valuation and financial matters. Don has been with Rehmann for 18 years, with prior Big Five national accounting firm experience. Additionally, he is a member of the Michigan Association of CPAs, has authored overviews on the Patient Protection and Affordable Care Act for the Firm’s BWD magazine and has spoken on the Act to various chambers of commerce.
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January 2013 – Some of the most talked about aspects of the Patient Protection and Affordable Care Act (PPACA) relate to the employer mandate provisions (often times referred to as “employer shared responsibility”) taking effect in 2014. With 2014 right around the corner, employers are starting to analyze their current health plans and determine what penalties, if any, they could be facing next year.
What Are The Employer Shared Responsibility Provisions?
Beginning in 2014, PPACA requires that large employers (those who employ 50 or more full-time employees (as defined by PPACA) or full-time equivalents) offer health coverage to their full-time employees and their dependents that is “affordable” and that provides “minimum value.” If an employer fails to provide such coverage, the employer could be subject to penalties on and after January 1, 2014.
Generally under PPACA, coverage will be deemed to be “affordable” if an employee’s share of the premium for employer-provided coverage would cost the employee more than 9.5% of that employee’s household income. Given that it may be difficult for employers to know an employee’s household income, the IRS has provided affordability safe harbors under which coverage will be considered to be affordable if the cost of that coverage would not exceed 9.5% of the employee’s W-2 wages from that employer, or if the coverage satisfies either of two other designed-based affordability safe harbors.
A health plan is considered to provide “minimum value” under PPACA, if the plan covers at least 60% of the total allowed cost of benefits that are expected to be incurred under the plan. Minimum value calculators will be made available by the IRS and the Department of Health and Human Services and employers will be able to input plan specific information on such items as deductibles and copays in order to determine if the plan provides minimum value.
Which Employers are Subject to the Employer Shared Responsibility Provisions?
Large employers with at least 50 or more full-time employees (defined as any employee working 30 or more hours per week for purpose of PPACA) or a combination of full-time employees and full-time equivalent employees will be subject to the employer shared responsibility provisions beginning in 2014. Employers with less than 50 full-time employees are not subject to the employer shared responsibility provisions.
In addition to full-time employees, employers must also add up the part-time hours for all part-time employees (those working less than 30 hours per week) in a month and divide by 120 to get the number of “full-time equivalent employees.” It is also important to note that the determination of whether an employer is a “large employer” for purposes of employer shared responsibility is made on a controlled group basis, so if an employer is part of a larger group of related companies, employers must take into consideration all employees of the entire controlled group in making this determination.
Under What Circumstances Will Large Employers Be Subject to Penalties?
In 2014, a large employer will generally be subject to the employer shared responsibility penalties under two circumstances:
1. A large employer does not provide health coverage to at least 95% of its full-time employees and their dependents, and one or more of its full-time employees receives federal insurance subsidies and obtains coverage on a State based exchange. In this case, the employer will face a penalty of $2,000 per full-time employee (minus the first 30 employees).
2. A large employer provides health coverage to at least 95% of its full-time employees and their dependents, but that coverage is deemed “unaffordable” or does not provide “minimum value.” If one or more of its full-time employees receives insurance subsidies and obtains coverage through a State based exchange, the employer will face a penalty of $3,000 per subsidized employee or $2,000 per employee (minus the first 30) whichever is less.
The IRS has indicated that it will contact employers to inform them of their potential penalty liability under PPACA’s employer shared responsibility provisions and provide them with an opportunity to respond before any liability is assessed or notice and demand for payment is made. The IRS has further provided that it will not contact employers regarding a given year until after employees’ individual tax returns are due for that year claiming premium tax credits and after the due date for applicable large employers to file the information returns identifying their full-time employees and the coverage that was offered for that particular year.
Stay Tuned!
2013 is sure to be a pivotal year in terms of health care reform guidance, and in particular with regard to the employer shared responsibility provisions. While the Agencies have issued preliminary guidance on this important issue, additional guidance and clarification are almost certain. Therefore, as we move closer to 2014, it is imperative for employers to work closely with their benefits consultants and legal counsel to ensure compliance with these complex regulations.
*This article is not intended to give legal advice. It is comprised of general information. Employers facing specific issues should seek the assistance of legal counsel.
Kristi R. Gauthier is a senior attorney in Clark Hill’s Birmingham office and concentrates her practice in Employee Benefits Law. Kristi has represented clients in a wide variety of employee benefits issues involving health and welfare benefits, as well as retirement plans. Kristi is admitted to practice in the State of Michigan, the U.S. District Court for the Eastern District of Michigan, and the U.S. Sixth Circuit Court of Appeals. She also is active in the legal community with memberships in the American Bar Association, the State Bar of Michigan, and the Oakland County Bar Association where she is a member of the Employee Benefits Committee. Kristi also serves as a member of the Clark Hill Diversity and Inclusion Committee. Kristi has lectured on various employee benefits issues, including ERISA compliance, healthcare reform, COBRA, section 125 plans, 403(b) plans and IRS plan correction programs. Kristi is also a co-author of the ABA publication ERISA Survey of Federal Circuits. Kristi was named a “Rising Star” by Michigan Super Lawyers in 2011.
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December 2012 – An area of much discussion within the Patient Protection and Affordable Care Act are aspects relative to the ‘Employer Mandate’ that will go into full effect January 1, 2014. Since we are just a bit more than a year from the effective date of this provision, it’s a good idea to start evaluating your company’s situation and assess your options.
Under the Act, there are different provisions for Large and Small companies. So, when is a company considered Small or Large?
The first step in evaluating how this aspect of the Act may impact your organization is to determine if your business is considered a ‘Small’ or ‘Large’ employer under the Act. For the purposes of health insurance requirements, the Act designates businesses with fewer than 50 full time equivalent employees to be a ‘Small Employer’, while businesses employing 50 or more full time equivalent employees are considered to be a ‘Large Employer’. Be aware that the computation of full time equivalents under the Act has its complexities, especially if your employee base is reliant upon part-time or seasonal employees. Therefore it is a good idea to seek counsel from your health benefits advisor as you assess your compliance with this aspect of the Act.
Are there penalties ‘Small Employers’ need to be concerned about?
If you fall into this classification of being a ‘Small Employer’, the good news is that no penalties currently exist for not offering insurance coverage. In fact, through December 31, 2013, if you employ 25 or fewer full-time workers whose average wages do not exceed $50,000 annually and you offer employer sponsored health insurance, you may qualify for the Small Employer Health Insurance Credit. This could help offset the costs of voluntarily offering health insurance coverage to your employees. After 2013, the provisions and requirements of the Small Employer Health Insurance Credit will change. Those of you who think your business may qualify for this Credit should consult your tax advisor.
What penalties (excise tax) will Large Employers face if no health insurance is offered?
Unfortunately, ‘Large Employers’ may incur an additional tax if they don’t offer eligible employees the option to enroll in an employer sponsored health plan. Under the terms of the Act, if the company chooses to not offer employee health coverage, and at least one of its employees is certified to receive a premium tax credit or cost sharing subsidy in an eligible State Exchange (public insurance program), the company will then subject itself to a nondeductible excise tax. This excise tax is what is referred to by many as a ‘penalty’. The calculation of this penalty can be somewhat complex, but in simple terms, could amount to $2,000 per full time employee in excess of the first 30 employees. It is a good idea to discuss your specific circumstances with your health benefits advisor and your CPA.
What about Large Employers who offer Insurance, are they exempt from an excise tax?
The simple answer is …it depends. If the company offers what the government considers to be ‘inadequate or cost prohibitive’ coverage, they may end up incurring an excise tax liability. There are two tests that must be met to avoid these taxes:
1. The first test relates to the level of coverage offered. The coverage must on average pay for a minimum of ‘60% of covered health care claim costs for a typical population’.
2. The second test focuses on the overall affordability of the coverage to the employee. Generally, the coverage is deemed unaffordable if the employee has to pay more than 9.5% of family income to obtain it.
These calculations become complex, but in simple terms, the excise tax could amount to as much as $2,000 to $3,000 for every fulltime employee whose coverage fails to meet one or both of these criteria. Therefore, it’s a good idea to discuss the impact of these regulations with your benefits consultant.
What are some of the Tax and Financial implications a Large Employer should consider:
As with many business decisions, the tax and financial implications are often key aspects to consider in the assessment of the impact of this Act. If your business is currently offering health insurance to its employees, under current regulations the costs of these benefits are tax deductible. But, if a ‘Large’ business elects to discontinue offering health insurance coverage or changes to a level of coverage that the regulations describe as ‘inadequate or cost prohibitive’, the business may likely be subjected to a non-deductible excise tax. Proper business planning around this Act will require one to assess the financial impact of these excise taxes in comparison to the costs of offering health insurance coverage. Such considerations must be done carefully, especially in a union environment. Additionally, whether a union environment or not, we all know how sensitive it can be to adjust benefit levels for your employees as it certainly has an impact on employee morale and productivity.
As we all continue to learn about PPACA’s constantly evolving regulations, there are a great number of considerations and unknowns a business must wade through in determining how the Act will impact them. The Employer Mandate component is no different than the other sections of the Act in that it will take a great deal of planning to make sure you are ready for its aspects come January 1, 2014.
With extensive experience providing financial solutions to clients – from business operation & efficiency assessments to consulting & corporate tax guidance – Don McAnelly is ideally positioned to provide the support today’s businesses need. Don serves as Rehmann’s primary CPA contact for health care clients in East Michigan and his experience extends to tax, valuation and financial matters. Don has been with Rehmann for 18 years, with prior Big Five national accounting firm experience. Additionally, he is a member of the Michigan Association of CPAs, has authored overviews on the Patient Protection and Affordable Care Act for the Firm’s BWD magazine and has spoken on the Act to various chambers of commerce.
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A business is reimbursing its executives for the annual physical examinations under its Health Reimbursement Arrangement and no one else. Wouldn’t such a practice be discriminatory and taxable to the executives?
No. Under Treasury Regulation Section 1.105-11(g), a special exception applies from the Code Section 105(h) nondiscrimination rules for reimbursements paid for medical diagnostic procedures for a highly compensated individual. Reimbursements of these expenses are not considered part of the self-insured health plan.
For example, the reimbursement of an employee’s annual physical examination conducted at the employee’s physician’s office is not considered part of the self-insured health plan (and thus is not subject to the Code Section 105(h) rules). An employer can rely on this exception to provide free “executive physicals” to certain employees, often including only highly compensated individuals.
This is permitted discrimination in favor of highly compensated individuals for a narrowly defined type of expense. The exception does not apply to an employee’s dependents.
The allowable procedures include routine medical examinations, blood tests, and X-rays. They do not include expenses for the treatment, cure, or testing of a known illness, disability, or physical injury. Thus, a routine dental examination with X-rays qualifies, but X-rays and treatment for a specific dental problem do not.
In addition, such procedures do not include activities undertaken for exercise, fitness, nutrition, recreation, or general improvement of health unless they are for medical care, as provided in Treasury Regulation Section 1.105-11(g). The diagnostic procedures must be performed at a facility that provides no services other than medical and ancillary services. Physical proximity between a medical and non-medical facility does not necessarily mean that the medical facility will not qualify. Transportation expenses that are primarily for the diagnostic procedure (but not incidental expenses for food or lodging) are allowed only if they are “ordinary and necessary,” as provided in Treasury Regulation Section 1.105-11(g).
Larry Grudzien is an attorney practicing exclusively in the field of employee benefits. He has experience in dealing with qualified plans, health and welfare, fringe benefits and executive compensation areas. He has more than 35 years of experience in employee benefit law and is an adjunct faculty member of John Marshall Law School’s LL.M. program in employee benefits and at the Valparaiso University School of Law, where he teaches a number of courses.
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By Larry Grudzien, J.D.
By Kristi R. Gauthier, Esq.
February 2013
February 2013 – It’s hard to believe we are nearing the three-year mark of President Obama’s signing of the Patient Protection and Affordable Care Act of 2010 (PPACA). Even more concerning is the fact that this piece of legislation appears to still have some surprises in store for us all. For those of you who may not have heard, the news outlets have been buzzing about a new Obamacare charge hidden in recent regulations. As this Act continues to evolve, it is important to keep up with the most recent changes as well as highlighting some other “stealth fees” that you may not yet be aware of.
With extensive experience providing financial solutions to clients – from business operation & efficiency assessments to consulting & corporate tax guidance – Don McAnelly is ideally positioned to provide the support today’s businesses need. Don serves as Rehmann’s primary CPA contact for health care clients in East Michigan and his experience extends to tax, valuation and financial matters. Don has been with Rehmann for 18 years, with prior Big Five national accounting firm experience. Additionally, he is a member of the Michigan Association of CPAs, has authored overviews on the Patient Protection and Affordable Care Act for the Firm’s BWD magazine and has spoken on the Act to various chambers of commerce.