PPACA Regulations Impacting Plan Changes Part II

Transcription

1 PPACA Regulations Impacting Plan Changes Part II C o n s u l t i n g B r o k e r a g e C o m p l i a n c e C o m m u n i c a t i o n A d m i n i s t r a t i o n

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3 Today s speaker As Crawford Advisors GC and Vice President Compliance, Mr. Haynes advises employers and plan sponsors in a variety of health and welfare benefit plan compliance matters, including, but not limited to, tax qualification and other Internal Revenue Code issues, PPACA, ERISA, COBRA and HIPAA portability, security and privacy issues. Mr. Haynes lectures frequently and has published many articles on health and welfare benefit plan compliance topics. Patrick C. Haynes, Jr. Education Temple University School of Law, LL.M. Rutgers University School of Law, J.D. Rutgers University School of Business, M.B.A. Rutgers University College of Arts & Sciences, B.A. Admitted to Practice U.S. Supreme Court Federal and State Courts of New Jersey Pennsylvania Connecticut District of Columbia Practice Areas Employee Benefits & Exec Comp, ERISA, COBRA, HIPAA, 125, and 105, 106, 129, 132 3

4 Today s Agenda... Healthcare Reform updates 2016 Part II IRS Publications 502, 503, /1095 extended deadlines coming up Picking it clean revisiting IRS Notice (again) OOPmaxes, limits and more plan for 2017 now SBC Updates more changes & more delays 4

5 IRS Publications useful links & guidance IRS Publication 502 Medical and Dental Expenses Can I use my HCFSA for or? IRS Publication 503 Child and Dependent Care Expenses Can I pay a family member for daycare? Are overnight camps reimbursable? IRS Publication 969 Health Savings Account and Other Tax-Favored I am enrolled in Medicare what affect does that have on my HSA? Prior Guidance: 5

6 IRS Notice This notice was issued on 12/15/2015 and was applicable to Plan Years on or after 12/16/2015 It offers 26 Questions and Answers on various topics. These include: - HCFSA carryovers (rules, rights, calculating COBRA, determining spent vs underspent, etc.) - EPPs (Employer Payment Plans) - HRA integration with Medical/Rx plans - IRC 4980H PPACA Affordability changes - IRS Forms 1094/1095 ER and EE reporting of ER and Individual Mandate requirements Prior Guidance: 02/18/2016: Guidance on Health Reimbursement Arrangements 12/21/2015: Opt-Out Payment 180! And, ER Shared Responsibility Payments Indexed 6

7 HCFSA Carryovers (options) 2013 brought us: A $2,500 cap on HCFSAs The ability to have either a 2.5 grace period (more time to incur HCFSA claims) or The ability to roll-over up to $500 into a subsequent year s HCFSA IRS modified the use-or-lose rule to allow HCFSA carryovers A HCFSA can provide that up to $500 of unused amounts at end of PY remain available to reimburse eligible expenses incurred during entire subsequent PY Carryover feature is optional IRS Notice provides additional guidance in Q/As Carryovers can be limited to individuals who elect to participate in HCFSA in next PY (Q/A-24) HCFSA may provide that carryover from PY1 is available only if the individual also elects to make salary reductions to the HCFSA FSA for PY2 This is permitted even if HCFSA requires a minimum salary reduction for participation (e.g., $100/year) HCFSAs can provide for forfeiture of carryovers not used within specified period, such as one year (Q/A-25) Caution: Requires additional administration/tracking. Initial guidance was in IRS Notice

8 HCFSA Carryovers (options) Impact on COBRA Carryovers are included in determining the benefit that can be continued under COBRA for remainder of PY after a QE (Q/A-21) Qualifying HCFSAs need not offer COBRA coverage unless QB s account is underspent when QE occurs; carryovers count toward that determination. Example: Sally elects HCFSA salary reductions for 2017 of $2,400 ($200/month) and carries over $500 from 2016 Sally terminates employment on May 31, 2017, having submitted $1,000 of reimbursable claims Her remaining annual limit is $1,900, and the maximum COBRA premium for the rest of 2017 is $1,428 ($200 7, plus 2% add-on) Because Sally s remaining annual limit exceeds the maximum COBRA premium, her account is underspent Carryovers are not included in determining COBRA premiums (Q/A-22). COBRA premium = employee s salary reduction election for PY + any non-elective employer contribution Any carryover is disregarded Example: For 2017, Donald elects HCFSA salary reduction of $1,200, receives matching contributions of $1,200, and carries over $500 in unused benefits Donald terminates employment on May 31, 2017 His maximum monthly COBRA premium for the remainder of 2017 (before the 2% add-on) is 1/12 of $2,400 ($1,200 salary reduction election + $1,200 matching contributions), or $200. *HCFSAs that allow carryovers must allow them for similarly situated COBRA beneficiaries (Q/A-23). Subject to same terms, and notwithstanding the special limited COBRA obligation for qualifying HCFSAs. Example: Hillary participates in employer s HCFSA, which allows carryovers up to $500. Hillary terminated employment on May 31, 2017 She elects COBRA, and pays the premiums through the end of 2017 Hillary can carry over up to $500 of unused benefits remaining at the end of 2017 to reimburse future expenses; no COBRA premium can be charged Amounts carried over must be available until maximum COBRA period ends (here, November 30, 2018) or until exhausted, if earlier 8

9 IRS Notice EPPs Employer Payment Plans Notice affirms prior guidance on EPPs HRAs and other EPPs cannot be used to purchase, or reimburse for, individual insurance coverage They do not satisfy HCR mandates on a standalone basis and cannot be integrated with individual coverage Implications for cafeteria plans (Q/A-6) A cafeteria plan that pays for individual insurance coverage through salary reductions, flex credits, or other employer contributions is an EPP that cannot be integrated with the individual coverage and thus fails to satisfy HCR mandates And, the IRS clarified the narrow exceptions (see below) Notice clarifies two narrow exceptions Retiree-only HRAs (Q/A-1) Can be used to purchase individual insurance coverage even if HRA balances include amounts credited while employed and covered by ER s integrated HRA Excepted benefits (Q/A-5) Not a violation if plan terms limit the purchase/reimbursement to individual insurance coverage that provides only excepted benefits (e.g., dental coverage) Fails to comply if plan is silent even if, in practice, only excepted-benefit coverage is purchased HRA integration (Q/A-2) A non-retiree HRA fails to be integrated (and thus fails HCR mandates) if it can be used to purchase individual coverage not limited to excepted benefits, even if Employee has other GHP coverage, or Amounts used were credited while HRA was integrated HRA integration for family coverage (Q/A-4) If an HRA can reimburse family members expenses, the family members must be covered by the employer s other group health plan GHP coverage from another employer might be sufficient Transition rule waives this requirement for PYs beginning before 2017 if certain conditions are met 9

10 IRS Notice PPACA Affordability/Min Value ( 4980H) Background For ALEs, failure to offer full-time employees (and dependent (natural/adopted) children) coverage that satisfies specified standards risks Code 4980H penalties when a full-time employee enrolls in subsidized Exchange coverage 4980H(a) penalty: Failure to offer MEC to enough full-time employees (and dependent children) 4980H(b) penalty: Failure to offer affordable MV coverage Affordability in a nutshell Measures employee contribution required for coverage Based on whether employee cost for self-only coverage in lowest-cost MV plan is 9.5% (as indexed; see later slide) of household income MV in a nutshell Measure s plan s cost-sharing Based on whether plan pays at least 60% of the total allowed costs of benefits provided under the plan Recent guidance on affordability and MV Guidance addresses what types of employer contributions count toward affordability and MV December 2015 final regulations [next slide] Notice , Q/As 7-9 (especially opt-out credits). 10

11 IRS Notice PPACA Affordability/Min Value ( 4980H) Final regulations (Dec. 2015) Wellness program incentives Generally do not count for affordability or MV Example: ABC Company charges EEs $25/pay for not completing a health-risk-assessment. That $25 gets added to the payroll contributions and counts against the affordability math (you must assume a nonwell/non-participating position). Incentives designed to prevent or reduce tobacco use do count as if employee qualifies for the incentive (unless you test for the presence of nicotine) Employer contributions to integrated HRAs ---Amounts available only to pay cost-sharing (not premiums) count toward MV ---Amounts newly available for current year to pay premiums count toward affordability Employer health flex contributions under cafeteria plan Count for affordability, so long as contribution: (1) may not be taken as taxable benefit; (2) may be used to pay for MEC; and (3) may be used only for Code 213 medical care Transition relief for PYs beginning before 2017 Employers may count certain contributions for purposes of Code 4980H(b) if requirements are met (Q/A-7-9) Future proposed regulations expected to address unconditional opt-outs Transition relief applies in the interim Special rule for employers subject to certain federal prevailing wage laws (Q/A-10) 11

12 IRS Notice PPACA Affordability/Min Value ( 4980H) Affordability standard indexed (Q/A-12) 9.5% standard (of family income)is indexed for all provisions under Code 4980H and Regulations will be amended, and employers may rely on these indexed amounts. As one safe harbor measure, ERs may use these percentages based upon what they pay their EEs 2015: 9.56% 2016: 9.66% Adjustments to penalty amounts (Q/A-13) Year 4980H(a) Sledgehammer 4980H(b) Tackhammer Tackhammer per month 2014 $2,000 $3,000 $ $2,080 $3,120 $ $2,160 $3,240 $270 12

13 IRS Notice PPACA Other 4980H Clarifications Hour of Service (Q/A-14) To determine full-time employee status - hour of service means each hour for which an EE is paid, or entitled to payment, for the performance of duties for the ER - Do not count hours after termination of employment or hours paid solely to comply with workers compensation laws - Generally do count disability leaves if retaining EE-status and receiving ERfunded disability benefits - Educational organizations (Q/A-15) The special rules for counting service (including breaks in service) apply even if staffing agencies are used - ALE status of government employers (Q/As 18-19) Apply reasonable, good faith interpretation of Code s aggregation rules 13

14 IRS Notice PPACA 2017 Final Parameters Issued Notice of 2017 Benefit and Payment Parameters Final regulations (3/8/2016) with details on many HCR operational items What s important for ERs and Plan Sponsors? Notice of Exchange enrollment (narrowed), starts 11/01/2016, ends 01/31/2017. Exchanges required to notify ERs only when an EE actually enrolls in Exchange coverage with eligibility for premium tax credit (not for mere eligibility) Sample notice from Federal Exchange to be published Annual cost-sharing limit (out-of-pocket maximum) For 2017: $7,150 for individual coverage and $14,300 for family coverage (for non-hsa plans). See later slides. 14

15 IRS Notice Forms 1094/1095 Relief for good faith efforts to comply [IRS Notice (Q/A-26)] For 2015 reporting (in 2016), no penalties for incorrect or incomplete returns if demonstrate good faith efforts to comply Not available to entities that fail to timely file/furnish or cannot show good faith effort to comply Deadlines extended for 2015 reporting IRS Notice announced automatic extensions Statements to individuals: March 31, 2016 Paper returns to IRS: May 31, 2016 Electronic returns to IRS: June 30, 2016 (must file electronically if filing 250 or more Forms 1095) What fines could an Employer/Plan Sponsor face if they were delinquent/late/etc.? Under the Good Faith Effort standard, the fines: 1. Could be nothing. 2. Could be $50/Form. 3. Could be $250/Form. Consider - Reasonable cause vs willful neglect $0 $50 $250 15

16 SBCs Updates On/After 04/01/2017 Proposed revisions to template and other items In Feb. 2016, agencies proposed further changes to the versions proposed in Dec Affects template, uniform glossary, and instructions Would reduce template to 2.5 double-sided pages Request for comments (comment period ends 3/28/2016) Implementation date: Part XXX FAQs (3/11/2016) Expect to finalize in time to apply to first open enrollment period that beginning on or after April 1, 2017 Important Questions As with 2014, eliminates questions on annual limits; services not covered are addressed elsewhere in SBC Rewords some questions (e.g., effect of using networks) Disclosures Revises required disclosures about continuation coverage and grievance and appeals rights Adds disclosures about MEC and MV, including specified language explaining significance Coverage examples As with 2014 proposal, adds a 3 rd example (involving a simple fracture) New proposals provide for clearer information about plan deductibles and coinsurance; and eliminate hypothetical costs for services Instructions ----Some new instructions added (e.g., on providing information about plan s coverage of abortion services) ----Updated to reflect earlier guidance (e.g., combining multiple cost-sharing options and explaining effects of HCFSAs, HRAs, HSAs, and wellness programs) ----Uniform glossary Adds same defined terms as proposed in 2014 These include, e.g.,: Claim, Cost Sharing, Cost-sharing Reductions, Marketplace, Minimum Essential Coverage, Minimum Value Standard, Formulary, Specialty Drug - Defined terms would be underlined in SBC and, for electronic SBCs, hyperlinked to glossary Prior guidance 03/16/2016: New SBC Updates from the DOL 06/22/2015: HHS Releases final regs for SBCs. 03/30/2015: New SBCs Delayed until January 1, /29/2014: New SBCs for

17 Wellness on Trial (part 5 or 6?) EEOC v. Flambeau, Inc. (W.D. Wis. 2015) Enrollment in ER s health plan required a medical history questionnaire and biometric screening EEOC challenged under ADA (which generally prohibits requiring EEs to submit to medical exams) ER argued assessments were needed to identify health risks for underwriting purposes under ADA s bona fide benefit plan safe harbor and trial court agreed (following Seff v. Broward County) Court noted that, even if it were bound by EEOC s April 2015 proposed ADA regulations, the proposals address only incentive-based programs, not underwriting EEOC has appealed; might address in final regulations 17

18 HHS has a budget for HIPAA Audits! Website guidance on the right to access own PHI Addresses designated record set, permitted means of requesting and providing access, third parties, BAAs, fees, etc. HIPAA security crosswalk - Helpful tool mapping HIPAA security requirements to existing cybersecurity resources from NIST (National Institute of Standards and Technology) Two new fact sheets - Uses and disclosures of PHI for health care operations - How privacy and security rules apply to developers of health apps (e.g., when is developer a Business Associate of of health plan?) Enforcement? Fines & Highlights Rare civil penalty imposed: $239,800 Home health agency did not cooperate with investigation involving employees transport and storage of PHI Settlement agreements continue, including Provider posting of patient testimonials: $25,000 Disclosures for marketing require written authorization Disclosure of research participants PHI: $3.9 million Laptop stolen from employee s car; investigation found inadequate security management process MN healthcare system: Lack of BA contract and organization-wide risk assessment: $1.55 million HIPAA audits: Still awaiting updated audit protocol 18

19 IRS Guidance on the tax treatment of Identity Protection Services IRS Announcement (12/30/2015) Value of ER-provided identity protection services is not taxable income regardless of whether a breach has occurred Extends earlier 2015 guidance that applied only to individuals affected by a data breach Services include credit reporting and monitoring, identity theft insurance, identity restoration, and other similar services Guidance does not apply to cash in lieu of services, or to amounts paid under an identify theft insurance policy 19

20 Transportation Plan Benefits PATH Act made transit parity permanent Part of Consolidated Appropriations Act (12/18/2015) Combined limit for transit and vanpooling benefits under a qualified transportation plan equals qualified parking benefits limit Applies retroactively to any month after 2014 (but, not realistic for ERsponsored plans) Combined monthly limit for 2015: $250 (would have been $130); for 2016: $255 IRS Notice Explained how to correct 2015 FICA tax overpayments and report income and tax on Forms 941, 941-X, and W-2 (similar to retroactive increase for 2014) 20

21 ERISA 510 Actions? Trial court: Marin v. Dave & Busters, Inc. ERISA 510 claim This class action lawsuit (with 10,000 workers affected) alleged that the ER reduced the workers hours to keep them from attaining Full-Time status in order to avoid PPACA s ERmandate. Case theory: ERISA Section 510, prohibits ERs/Plan Sponsors interfering with an EE s attainment of benefits; which, effectively prohibits ERs from reducing work hours for the purpose of avoiding the requirement to offer health coverage under PPACA. 21

22 Cost Sharing and OOP Maximums

23 Out of Pocket Maximums * X + For 2014, non-gf plans (all of them) had to comply with the new OOPMAX limits. But, under a multiple provider transition rule, had another year to work with a separate Rx vendor to impose separate Oopmaxes. Time's up on the "double-oopmax" limit, transition rules--one OOPMAX for med/rx (combined). Also, 2015 was the first year that HDHP- HSA plans were indexed separately. Per HHS guidance, for tiers greater than single, the plans must have an imbedded OOPMAX that does not exceed the PPACA maximum for a single individual (human). 23

24 Out of Pocket Maxes for 2016 Embedded (individual) OOP Max (on non-single tiers), for non GF-Plans Applies for the 1st plan year on or after 1/1/2016 Out of Pocket Maximums for non-hsa plans is $6,850 for single and $13,700 for family coverage No single/individual family member may be subject to out of pocket costs exceeding $6,850 See the DOL s PPACA Freq. Asked Questions Number 27 here and our 10-year timeline below +Per HHS guidance, greater than single tier elections must have an imbedded OOP Max that does not exceed the single-tier OOP Max. 24

25 Questions If you have any further questions about the information discussed in this Webinar, please feel to contact us at 25