Shared Responsibility for Employers Regarding Health Care Coverage

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1 January 14, 2013 Shared Responsibility for Employers Regarding Health Care Coverage On December 28, 2012, the Internal Revenue Service ( IRS ) issued a Notice of Proposed Rulemaking for regulations providing guidance under section 4980H of the Internal Revenue Code (the IRC ) concerning the employer shared responsibility requirements under the Patient Protection and Affordable Care Act (the Affordable Care Act ). 1 Additionally, the IRS posted a new set of questions and answers concerning these shared responsibility requirements on the agency s website. I. Background The Affordable Care Act provides that as of 2014, any applicable large employer who fails to offer its full-time employees the opportunity to enroll in minimum essential coverage through an employer-sponsored health plan, or who offers these employees the opportunity to enroll in such minimum essential coverage that is either: Unaffordable because the employee s required contribution would exceed 9.5 percent of the employee s household income; and/or Does not provide minimum value because the health plan s share of the total allowed cost of benefits is less than 60 percent Is subject to financial penalties if any of these full-time employees purchases health insurance through a state-based American Health Benefit Exchange ( Exchange ) and receives a premium tax credit or cost sharing reduction. In general, the penalties are as follows: For employers that do not offer health coverage to full-time employees (and their 1 Pension Excise Tax Regulations (26 CFR part 54).

2 dependents), the penalty is $2,000 for each full-time employee in excess of 30 employees; or II. For employers that offer coverage that is unaffordable or does not provide a minimum value, the penalty is $3,000 for each full-time employee receiving a premium tax credit. 2 Explanation of Provisions The proposed regulations generally incorporate the provisions of Notice , as well as many of the provisions of Notices , , and , with some modifications in response to comments. The regulations also provide guidance on additional issues, such as: Clarifying that employers must offer coverage to substantially all (at least 95 percent) of its full-time employees (and their dependents) in order to avoid paying the shared responsibility penalty, and for purposes of the shared responsibility requirements, dependents are defined as an employee s child up to age 26 and do not include spouses or any individual other than children; Explaining that employers in a controlled group are aggregated for purposed of determining whether an employer is subject to the shared responsibility requirements, however, each member of the controlled group is considered a separate entity for the purpose of calculating and applying the shared responsibility penalty to itself; and A transition period providing that employers that do not offer dependent coverage will not be subject to the shared responsibility penalty if they take steps during the 2014 plan year to satisfy this requirement. The Notice of Proposed Rulemaking further states that employers may rely on these proposed regulations pending the issuance of final regulations or other applicable guidance. The proposed regulations are summarized, in part, below. A. Applicable Large Employer Status The regulations affect only the employers meeting the definition of applicable large employer. An applicable large employer is an employer that employed an average of at least 50 full-time employees on business days during the preceding calendar year. A full-time employee in regard to any month is an employee who is employed on average at least 30 hours of service per week. 2 The penalty for both non-offering and offering employers for any month, however, is capped at the amount calculated by multiplying the number of full-time employees during the month that exceed 30 by $ (one-twelfth of $2,000), regardless of how many employees are receiving a premium tax credit or cost-sharing reduction. In other words, the maximum amount that an employer could pay is capped at the penalty it would be assessed for failing to offer the opportunity to enroll in minimum essential coverage. Thus, the penalty imposed on an "offering" employer can never exceed the penalty imposed on a non-offering employer with the same number of employees.

3 For purposes of determining whether an employer is an applicable large employer, full-time equivalent employees ( FTEs ), which are statutorily determined based on the hours of service of employees who are not full-time employees, are taken into account. 1. Substantially All Employees Liability for the shared responsibility penalty is predicated on an applicable large employer or an applicable large employer member ( member discussed below) failing to offer its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an employer-sponsored plan. If section 4980H liability is triggered, the amount of the assessable payment is determined by reference to a member's total number of full-time employees (including full-time employees offered employer-sponsored coverage). The Treasury Department and the IRS determined that the assessable payment should not apply in the case of a member that intends to offer coverage to all its full-time employees, but fails to offer coverage with respect to a few full-time employees, and adopted a clear and definitive 95 percent standard as an administrable and appropriate interpretation of the statutory provision. Accordingly, they provide that an applicable large employer member will be treated as offering coverage to its fulltime employees (and their dependents) for a calendar month if, for that month, it offers coverage to all but five percent or, if greater, five of its full-time employees (provided that an employee is treated as having been offered coverage only if the employer also offered coverage to that employee's dependents). The alternative margin of five full-time employees (and their dependents), if greater than five percent of full-time employees (and their dependents), is designed to accommodate relatively small applicable large employer members because a failure to offer coverage to a handful of fulltime employees (and their dependents) might exceed five percent of the applicable large employer member's full-time employees. This relief applies to a failure to offer coverage to the specified number or percentage of employees (and their dependents), regardless of whether the failure to offer was inadvertent. 2. Calendar Year An employer s status as an applicable large employer for a calendar year is determined by taking the sum of the total number of full-time employees (including any seasonal workers) for each calendar month in the preceding calendar year and the total number of FTEs (including any seasonal workers) for each calendar month in the preceding calendar year, and dividing by 12. The result, if not a whole number, is then rounded to the next lowest whole number. If the result of this calculation is less than 50, the employer is not an applicable large employer for the current calendar year. If the result of this calculation is 50 or more, the employer is an applicable large employer for the current calendar year, unless the seasonal worker exception applies. 3. Full-Time Employees

4 For employees paid on an hourly basis, an employer must calculate actual hours of service from records of hours worked and hours for which payment is made or due. For employees paid on a non-hourly basis, an employer must calculate hours of service by using one of the following methods: Using actual hours of service from records of hours worked and hours for which payment is made or due; Using a days-worked equivalency whereby the employee is credited with eight hours of service for each day for which the employee would be required to be credited with at least one hour of service; or Using a weeks-worked equivalency whereby the employee is credited with 40 hours of service for each week for which the employee would be required to be credited with at least one hour of service. 4. Seasonal Workers The proposed regulations provide that, solely for purposes of the seasonal worker exception in determining whether an employer is an applicable large employer, an employer may apply either a period of four calendar months (whether or not consecutive) or a period of 120 days (whether or not consecutive). Because the 120-day period referred to in the IRC is not part of the definition of the term seasonal worker, an employee is not automatically precluded from being treated as a seasonal worker because the employee works, for example, on a seasonal basis for five consecutive months. Also, the 120-day period referred to in the IRC is relevant only for applying the seasonal worker exception for determining status as an applicable large employer, and is not relevant for determining whether an employee is a seasonal employee for purposes of the look-back measurement method (meaning that an employee who provides services for more than 120 days per year may nonetheless qualify as a seasonal employee). 3 The proposed regulations indicate in the preamble that the term seasonal worker, as incorporated in the IRC, is not limited to agricultural or retail workers. It states that until further guidance is issued, employers may apply a reasonable, good faith interpretation of the statutory definition of seasonal worker, including a reasonable good faith interpretation of the standard set forth under the applicable Department of Labor ( DOL ) regulations. 4 B. Applicable Large Employer Member For purposes of counting the number of full-time and full-time equivalent employees for determining whether an employer is an applicable large employer, section 4980H provides that 3 Section 4980H(c)(2)(B)(ii) CFR (s)(1).

5 all entities treated as a single employer under the applicable IRC provisions are treated as a single employer for purposes of section 4980H. All employees of a controlled group or an affiliated service group are taken into account in determining whether the members of the controlled group or affiliated service group together constitute an applicable large employer. The proposed regulations clarify that for a calendar year during which an employer is an applicable large employer, the section 4980H standards generally are applied separately to each person that is a member of the controlled group comprising the employer, with each such person referred to as an applicable large employer member in determining liability for, and the amount of, any assessable payment. 1. Shared Responsibility The proposed regulations address the application of the shared responsibility requirements to an applicable large employer member. The determination of applicable large employer status is made on a controlled group basis applying the IRC s aggregation rules. For purposes of counting the number of full-time and FTE employees for determining whether an employer is an applicable large employer, section 4980Hprovides that all entities treated as a single employer are treated as a single employer for purposes of section 4980H. Thus, all employees of a controlled group or an affiliated service group are taken into account in determining whether the members of the controlled group or affiliated service group together constitute an applicable large employer. In calculating the liability under section 4980H(a), the applicable large employer, as determined applying these same aggregation rules, is permitted one reduction of 30 full-time employees, and that the reduction must be allocated ratably among the members of the applicable large employer based on each member's number of full-time employees. The aggregation rules used in determining applicable large employer status also apply for purposes of determining liability for, and the amount of, an assessable payment. But as previously mentioned, for a calendar year during which an employer is an applicable large employer, the IRC section 4980H standards are generally applied separately to each person that is a member of the controlled group comprising the employer, with such persons referred to as an applicable large employer member, in determining liability for, and the amount of, any assessable payment. Stated another way, under the proposed regulations, although applicable large employer status is determined on an aggregated basis, the determination of whether an employer is subject to an assessable payment and the amount of any such payment is determined on a member-by-member basis. Therefore, the liability for, and the amount of, any assessable payment under section 4980H is computed and assessed separately for each applicable large employer member, taking into account that member's offer of coverage (or lack thereof) and based on that member's number of full-time employees. For example, if a parent corporation owns 100 percent of all classes of stock of 20 subsidiary corporations, and the controlled group is an applicable large employer, each of the 21 members of this controlled group (the parent corporation plus 20 subsidiary

6 corporations) is considered separately in computing and assessing a section 4980H payment. In addition, each of the 21 group members is liable only for its separate section 4980H assessable payment. C. Section 1411 Certification If an applicable large employer member fails to offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan for any calendar month, and the applicable large employer member has received a Section 1411 Certification with respect to at least one full-time employee, an assessable payment is imposed. For the calendar month, the applicable large employer member will owe an assessable payment equal to the product of the section 4980H applicable payment amount and the number of full-time employees of the applicable large employer member. The term Section 1411 Certification means the certification received as part of the process established by the Secretary of the Department of Health and Human Services ( HHS ) under which an employee is certified to the employer under Section 1411 of the Affordable Care Act as having enrolled for a calendar month in a qualified health plan with respect to which an applicable premium tax credit or cost-sharing reduction is allowed or paid with respect to the employee. An applicable large employer member will not be treated as having made an offer of coverage to a full-time employee for a plan year if the employee does not have an effective opportunity to elect to enroll (or decline to enroll) in the coverage no less than once during the plan year. Whether an employee has an effective opportunity is determined based on all the relevant facts and circumstances, including adequacy of notice of the availability of the offer of coverage, the period of time during which acceptance of the offer of coverage may be made, and any other conditions on the offer. D. Transition Relief Transition relief is being provided for applicable large employers with fiscal year plans. If an applicable large employer member maintains a fiscal year plan as of Dec. 27, 2012, the relief applies with respect to employees of the applicable large employer (whenever hired) who would be eligible for coverage, as of the first day of the first fiscal year of that plan that begins in 2014 (the 2014 plan year) under the eligibility terms of the plan as in effect on Dec. 27, If an employee described in the preceding sentence is offered affordable, minimum value coverage no later than the first day of the 2014 plan year, no assessable payment will be due with respect to that employee for the period prior to the first day of the 2014 plan year. III. Comments and Hearing Comments must be received by March 18, Additionally, the IRS plans to hold a public hearing on April 23, 2013, at 10:00 a.m. Suggested topics to be discussed at this hearing should be submitted by April 3, 2013.

7 The Notice of Proposed Rulemaking is available at The Questions and Answers on Employer Shared Responsibility Provisions under the Affordable Care Act is available at Answers-on-Employer-Shared-Responsibility-Provisions-Under-the-Affordable-Care-Act * * * This Policy Update provides general information and not legal advice or opinions on specific facts