In a recent webinar, Jake Mattinson and Sarah Raaii discussed the basics of health savings accounts (HSAs) and health flexible spending accounts. They provided an overview of the various regulations surrounding HSA, such as eligibility requirements, high deductible health plans, and contributions and distributions, and cafeteria plans. Additionally, they analyzed the differences between HSAs and Health FSAs and HRAs.
Amy Gordon and Susan Nash were recognized as top authors by JD Supra’s 2017 Readers’ Choice Awards for their thought leadership pieces in the Defense & Space Industry and Affordable Care Act (ACA) categories. In addition, Amy’s article, along with Sarah Raaii and Jamie Weyeneth, “Recent Government-Issued FAQs Clarify ACA Employer Mandate, Market Reforms” was in the Top 5 Read Articles in 2016 in the ACA category.
JD Supra’s 2017 Readers’ Choice Awards recognizes firms and authors who achieved top visibility and engagement in the JD Supra platform over the past year. Spanning 25 industries and topics, one firm and 10 authors were recognized in each category for their consistently high readership and engagement for all of 2016.
CMS recently released a final rule with the goal of stabilizing Exchange markets for 2018. The agency also issued several significant guidance documents where CMS extended the deadlines for 2018 rate and Exchange qualified health plan application submissions, adopted a good faith compliance standard for 2018 and delegated additional plan certification responsibilities to states. While these steps may provide some comfort for issuers, the agency did not address the most significant areas of issuer concern when it comes to 2018 Exchange participation. Namely, the Final Rule and guidance documents do not resolve ongoing uncertainty regarding cost-sharing reduction funding, the enforcement of the individual mandate or ongoing efforts to repeal the Affordable Care Act.
Late last week, President Donald Trump signed an executive order directing federal agencies to look into exempting religious employers from the Affordable Care Act’s (ACA) contraceptive mandate. Qualifying religious employers (e.g. houses of worship) are already exempt from providing contraceptive coverage under their benefit plans, and an accommodation process is provided for certain non-profit employers and closely held for-profit employers with religious objections to providing contraceptive coverage.
This new executive order is aimed at organizations like universities and charities, including entities such as the plaintiffs in Zubik v. Burwell. Last year, in Zubik, the US Supreme Court failed to decide whether the contraceptive-coverage mandate requirements (Contraception Mandate) and its accommodation violated the Religious Freedom Restoration Act of 1993 (RFRA) by forcing religious non-profits to act in violation of their religious beliefs. Although the ACA regulations included an exemption from contraceptive coverage for the group health plans of religious employers, the exemption did not provide that such services would not be covered. The services are just not covered through a cost-sharing mechanism born by the religious employers. The Contraception Mandate requires these organizations to “facilitate” the provision of insurance coverage for contraceptive services that they oppose on religious grounds. Many religious organizations were opposed to the requirement to facilitate, since they felt the requirement made them complicit in making contraception available, which violates their RFRA rights.
Based on a recent audit conducted by the Treasury Inspector General for Tax Administration (TIGTA), the IRS’ processes and procedures to ensure compliance with the employer information reporting requirements mandated by the employer shared responsibility provision (the play or pay rules) of the Affordable Care Act (ACA), have fallen short of their intended goals. (see Audit Report No. 2017-43-027). According to TIGTA, due to faulty processes, the IRS did not have “accurate and complete data for use in its compliance strategy to identify noncompliant employers potentially subject to the employer shared responsibility payment.” System errors also resulted in the agency being unable to process paper information returns “timely and accurately,” TIGTA noted. Approximately 16,000 paper Forms 1094-C and 1.4 million paper Forms 1095-C had not been processed as of five months after May 31 (the deadline). The TIGTA offered several recommendations to the IRS to improve management practices. The IRS agreed with all but one of these recommendations and is developing a more accurate system for identifying employers that are not complying with the employer shared responsibility requirements.
In the presentation “ACA Repeal/Replace Under the Trump Administration,” Susan Nash discusses the implications of President Trump and the GOP’s immediate vow to “repeal and replace” the Affordable Care Act (ACA), which was enacted in 2010 by the Obama Administration to reform the health care system in the US. A complete repeal is unlikely since many ACA changes will require a filibuster proof majority vote in the Senate. However, some changes can be made unilaterally through Executive action by Republicans through Budget Reconciliation, a special legislative process created by Congress to allow for expedited voting on bills that directly impact reviews and expenditures.
The presentation also highlights several proposals that the GOP has been working on to replace ACA, the non-enforcement of market reform requirements, the possible outcomes for the Trump Executive Order and the immediate ramifications for the insurance markets and millions of Americans.
On December 31, 2016, the US District Court for the Northern District of Texas issued an opinion and order in Franciscan Alliance, Inc. et al v. Burwell, which preliminarily enjoins the US Department of Health and Human Services from enforcing, on a nationwide basis, certain portions of the regulations under Section 1557 of the Affordable Care Act that prohibit discrimination based on gender identity and termination of pregnancy. Two similar cases are pending in the US District Court for the District of North Dakota.
Patient-Centered Outcomes Research Institute (PCORI) Fee
The Patient-Centered Outcomes Research Institute (PCORI) fee was established under the Affordable Care Act (ACA) to advance comparative clinical effectiveness research. The PCORI fee is assessed on issuers of health insurance policies and sponsors of self-insured health plans. The fees are calculated using the average number of lives covered under the policy or plan, and the applicable dollar amount for that policy or plan year. The past PCORI fees were—
- $2 per life, for policy and plan years ending on or after October 1, 2013, and before October 1, 2014
- $2.08 per life, for policy and plan years ending on or after October 1, 2014, and before October 1, 2015
- $2.17 per life, for policy and plan years ending on or after October 1, 2015, and before October 1, 2016
The new adjusted PCORI fee is –
- $2.26 per life, for policy and plan years ending on or after October 1, 2016, and before October 1, 2017
Employers and insurers will need to file Internal Revenue Service (IRS) Form 720 and pay the updated PCORI fee by July 31, 2017.
Transitional Reinsurance Fee
Like the PCORI fee, the transitional reinsurance fee was established under the ACA. It was designed to reinsure the marketplace exchanges. Contributing entities are required to make contributions towards these reinsurance payments. A “contributing entity” is defined as an insurer or third-party administrator on behalf of a self-insured group health plan. The past transitional reinsurance fees were:
- $63 per covered life for 2014
- $44 per covered life for 2015
- $27 per covered life for 2016
The transitional reinsurance fee funds cease after 2016. Although 2016 this is the final year for transitional reinsurance fees, the US Department of Health and Human Services (HHS) requires that entities retain records relating to their contributions for at least 10 years.
HHS recently released a filings manual which identifies key dates for the 2016 fee contributions. Contributing entities must submit the 2016 form and schedule their fee contribution no later than November 15, 2016. As in prior years, entities can elect to pay:
- The entire year’s contribution in one payment no later than January 17, 2017, or
- Two separate payments for the benefit year, with the first remittance ($21.60 per covered life) due no later than January 17, 2017, and the second payment ($5.40 per covered life) due no later than November 15, 2017.
Payment can be made online.
In the aftermath of the recent election of Donald Trump as president of the United States and the Republicans’ retention of control over both the House and the Senate, many are beginning to assess the impact of a Republican controlled Congress and presidency on the future of the Affordable Care Act (ACA).
This article was published on CFO.com, November 16, 2016.
This year’s Employer Healthcare & Benefits Congress featured a presentation by Susan Nash that addressed the many shapes and sizes of wellness programs today. Programs are typically designed to promote health and to educate employees about prevention, but some are disease management oriented, while others are designed to improve the general overall health of an employee population.
Presentation focal points included:
- HIPAA Nondiscrimination Rules
- Tri-Agency Guidance under ACA on Wellness Programs
- Americans with Disabilities Act and GINA
- EEOC Enforcement of ADA and Final Regulations
- Internal Revenue Code Limitations
View presentation slides.