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Thursday, September 11, 2014

Employer Responsibilities Under the Affordable Care Act; Avoiding the Penalties Under the Public Health Services Act-Your Road Map



Affordable Care Act Employer Responsibility Road-map for Health Plans

Businesses had a reprieve from the Affordable Care Act mandates in 2014, but next year they too will have to meet certain standards for health care plans in the United States and this article provides a road-map for compliance. Most of the information in this column was gleaned from an August seminar sponsored by the U.S. Department of Labor. Other than one employer representative who felt his employees, or perhaps we should call them serfs, should be thankful to get paid at all, and not receive any work force benefits, most of the seminar participants were working on understanding their compliance responsibilities. To assist in that proposition, here are the crib notes for those who want to be on the fast track for health plan readiness.

Provisions Which Have Are Being Phased in for All Employers with Fifty or More Workers
Public Health Services Act, Section 2708 stipulates that health plans offered by employers with fifty or more employees may have a maximum waiting period of ninety days before an employee is added to the medical plan.
If a self-insured plan fails to comply with the provisions of the Public Health Services Act, highly compensated individuals could lose the tax favored status of their benefits, which means they would have to pay tax on their health plan benefits. If an insured group health plan fails to comply with the provisions of section 105 H of the Public Health Services Act, an excise tax may (most assuredly) be exacted. [1]
Though the Patient Protection and Accountable Care Act mandate to provide medical coverage to employees applies to all firms employing fifty or more employees, the specific benefit design mandates mostly apply to insured plans. However, neither self-insured nor fully insured medical plans may exceed the ninety day waiting period limit, they must cover adult children to age 26, and pre-existing conditions clauses which prevent coverage are not allowed. Minimum health benefits, which are part of the insurance mandates for essential coverage, also apply to self-insured medical plans. If a self-funded plan does not offer a medical plan that meets the minimum for essential health benefits, an excise tax may be demanded, starting in 2015

Safe harbor provisions include foreign employees, or those working in other countries. The PHSA and the ACA applies to employees working within the confines of the United States and its territories.

Mandates which will Commence in 2015
Determining the Number of Eligible Employees
Determining full-time employee equivalents requires an algorithm and here are the steps:
1.       Have you had fifty or more fulltime or fulltime equivalent employees in the prior year? If you have a lot of part-time employees or if you own multiple corporations which are part of a controlled group, you still need to do this analysis.
2.       Determine your fulltime employees, which for purposes of the ACA are those working at least 30 hours a week. The language “on average” is used, but that can be a bit dicey, I suggest using a quarterly look-back.
3.       Next, determine your fulltime equivalent employees, which is defined as anyone who has worked at least twenty hours in a month. The ACA also allows employers to use the 130 hours  per month of work definition to determine fulltime status. Take the number of hours the employees worked in this category and divide it by the number of employees to arrive at your sum.
4.       Determine all other employees, regardless of the hours worked and divide that sum by 120
5.       To assess whether or not your firm is subject to the fifty employees and greater ACA compliance mandates, add the sums of the fulltime employees, the fulltime equivalents, and the sum for the “other employees” criteria. If this total equals or exceeds fifty, you must comply with the federal mandates of the Affordable Care Act. This total also determines which provisions of the Public Health Services Act apply and the various sections of the Internal Revenue Service Code.

How to Avoid an Employer PHSA Shared Responsibility Penalty
The good news is that a modest health plan can still avoid the tax penalties and here are the criteria to meet this hurdle, based on the presentation from Tax Counsel for the Department of the Treasury, Alan Tawshunsky[2].
The health plan must be offered to the fulltime employees, as defined in the previous eligible employee section or the employer will have to pay a tax penalty. The “B” penalty would only apply to employees who opted to purchase insurance through a federal or state insurance exchange (only for those firms with fifty or more eligible employees). To avoid the “A” penalty, which can be up to $3,000 per employee, the health plan must meet the minimum benefit threshold of 60% based on an actuarial formula. The acceptable health plan benefit threshold can be determined two ways, by going to the government Health & Human Services web site and use their calculator[3] or by using one of these methods:

1.       W-2 Method-Determine employee compensation, calculate the maximum insurance or health plan premium contribution made by that employee; if it exceeds 9.5% of that employee’s compensation you probably owe a penalty. If the proportion falls below the 9.5% level you have met the test. The W-2 method is based on earned income reported by the employer.
2.       Look-back Method-This involves taking the employee’s rate-of-pay at the beginning of the year, assume 130 hours of service monthly, and make an assessment using this criteria.
3.       Federal Poverty Method-This rule stipulates that as long as the premium contribution for which the employee is expected to make does not exceed 9.5% of their income, the plan is deemed affordable. Please note, this criteria differs from the insurance exchange standard which is 8% of income. FYI, the federal poverty level for a single individual in the United States in 2014 is $11,670 (more than that if you live in Alaska or Hawaii). For a family of four, it is $23,850. For a family of eight, it is $40,000. Prudence dictates that employers make a calculation for all employees earning less than $24,000, especially if they are single, head-of-household tax filers. The employers will have some access to tax filing status information, because the employees have to complete a W-9 tax filing form when they make changes in their tax filing status or when they are hired.
4.       Once you have determined if your plan meets an acceptable level of employer responsibility you only need to pay a tax penalty for the employees who opt out of the employer plan for the insurance exchange model. Typically these employees will make this selection because they are eligible for the federal tax credits, which apply to all (green card or citizen requirements apply) individuals within 400% of the federal poverty rate.

Measurement Period for Assessing the Eligible Employees and Determining Plan Acceptability
For employers choosing to use the “look-back” period, this can be done annually, semi-annually, or quarterly. It is best not to use a monthly calculation as it takes a month to assess eligibility, especially for new employees, so administrators wouldn’t know who is eligible until the end of the month and insurance plans require enrollment at the beginning of the month.

The government has coined a new phrase, called the stability period, which means once the initial eligibility is determined for employees, there is a period of time where the employees must remain on the plan, if they remain active employees. So if an employer chooses an annual measurement period, eligible employees will be allowed to remain on the plan for 12 months. If an employer opts to check eligibility every three months under the measurement period criteria, then the stability period will only be for three months. This effectively means that an employee’s health plan inclusion status could change every quarter.

Transition Relief for Employers in 2015
During 2015, the employer group can use any six months in a plan year to determine eligibility and it does not have to be six consecutive months. This means the employer could “game the system” if it wanted to put in the effort. Also, medical coverage must be offered to 33% of the workforce and 25% must actually be covered on the plan. In other words, an employer can’t have a sham group health plan. This harkens back to the pre ERISA days when employers set up fabulous pensions for themselves, to the exclusion of their employees, resulting in the “top heavy” rules to prevent discrimination and tax ruses.

In conclusion, the government has determined and the courts have upheld the provision of medical insurance as a requirement and if you are an employer with fifty or more equivalent employees, you must provide medical insurance or a medical plan, contribute an acceptable amount toward the cost of the program, or pay a tax penalty. However, since the cost of a group medical plan is now $4,885 per year just for the employee, employers may elect to pay the $2,000-$3,000 per employee penalty and avoid the employer health plan morass. According to the Kaiser Family Foundation’s 2013 Survey of Employer-Sponsored Health Benefits, family health plan premiums now run $11,786.[4]  This means the employer may also opt to pay a penalty on some classes of employees who fall under the annual shared responsibility rules, but continue to operate a health benefit plan. It is doubtful that many employers with fifty or more employees would cancel a medical benefits program, as this would have a negative impact on recruitment and retention of employees.

For brevity purposes this article has not listed any of the exemption criteria for the Accountable Care Act or Public Health Services Act provisions, but last month’s article addressed religiously exempt plans in detail.

This article was written by Roberta E. Winter, who is a health policy analyst and consultant, independent journalist, and author of http://www.amazon.com/Unraveling-U-S-Health-Care-Personal/dp/1442222972# . Though anyone may use this article, if quoting or reproducing any of the material please make sure that correct attribution of authorship is given. The healthpolicymaven thanks you for reading.


[1] Internal Revenue Service Notice 2011-1 and found online at: http://www.irs.gov/pub/irs-drop/n-11-01.pdf
[2] Alan Tawshunsky, Tax Counsel, U.S. Department of the Treasury; Affordable Care Act: Employer Shared Responsibility, Compliance Assistance Seminar, U.S. Department of Labor Health Benefits Education Campaign in coordination with the Washington Office of the Insurance Commissioner, Bothell Washington, August 20, 2014
[3]Centers for Medicare and Medicaid, Fact Sheet, May 16, 2014, and found online at: http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/Final-Master-FAQs-5-16-14.pdf
[4] Kaiser Family Foundation 2013 Survey of Employer Sponsored Health Benefits and found online at: http://kff.org/report-section/2013-summary-of-findings/

Wednesday, August 13, 2014

Religiously Exempt Health Care Reimbursement Plans-A Closer Look



Insurance Exchanges-Who Didn’t Enroll
This article reviews the federal mandate that all American citizens or those with legal residency status (and their dependents) must purchase medical insurance and identifies sociological groups who choose not to participate. Since the Supreme Court upheld this ruling in 2012,[1] the mandate has begun, and as of 2015, individuals will face tax penalties if they do not show proof of insurance. First, we have the allowed federal exemptions to the insurance mandate:[2]

Economic hardship (you can’t afford the premiums)
Incapacitated individuals, such as those under institutionalized care (in which case there should be some public benefit, most likely Medicaid for health care)
Incarcerated individuals (United States has one of the largest prison populations in the world)
Religious exemptions
Medicare recipients
Military personnel or anyone covered by the Veterans Administration for health care

This paper analyzes the religious exempt group and the proliferation of health care plans which are not considered insurance.  It is difficult to establish a firm number on the actual participants in religiously exempt health care plans, so the top three entities as defined by media research are reviewed.

Christian Healthcare Ministries was founded in 1981 as a 501 C-3 and it offers a health care program, which mirrors some of the provisions of the Patient Protection and Affordable Care Act Insurance Exchanges, including gold, silver, and bronze plans, and prices based on covered “units” (their word not mine). [4]

Samaritan Ministries was founded in 1994 as a 501 C-3 organization and it offers a monthly heath care reimbursement model which covers 36,000 households and spends one-hundred-eight-million dollars annually on health services.[5]

Christian Care Ministry was founded in 1993 as a 501 C-3 entity and it offers a medical care reimbursement program based on tithing.[6]

Common Qualities of the Religiously Exempt Health Expense Sharing Programs

Pre-existing Conditions Restrictions
Unlike the Affordable Care Act insurance exchanges, which do not have pre-existing conditions limitations, the religious groups are free to deny people coverage. Specifically, Christian Ministries does provide a limited reimbursement amount of $15,000 in the 1st year of enrollment for pre-existing conditions. In the 2nd year it allows up to $25,000 for treatment of a pre-existing condition, inclusive of whatever was paid in the first year. The stipulation for pre-existing conditions limitations expires after three years of enrollment. This plan also distinguishes between conditions which are in active treatment (like chemotherapy) and those in a maintenance state (like medication for hyper tension). Samaritan Ministries does not list any pre-existing condition exclusion on its web site.  Christian Health Ministry has an exclusion for any maternity conceived prior to enrollment, nor will the child be covered on their medical reimbursement plan.  Additionally, Christian Care Ministry requires enrollees to sign an affidavit saying they haven’t smoked in 12 months nor have they abused any drugs in that time frame. Also, they must agree to sex only within the confines of marriage, which may disallow treatment of sexually transmitted diseases for unmarried people.

Benefit Restrictions
The religiously exempt health care reimbursement plans also have very limited benefit caps, unlike the health exchanges, which are not permitted to do so. Christian Health Ministries restricts health care reimbursement to $100,000 per year and $1,000,000 per lifetime. They do allow a renewable $125,000 per illness add-on for those who choose the gold plan. Samaritan Ministries is even more frugal, with a cap of $250,000 per person for medical care reimbursements. Under the Christian Care Ministry program there is a fixed $100,000 limit for accidents each year but the restrictions get murkier after that.  For example, there is a 15% increase in out-of-pocket cost if a seat-belt was not used or a helmet was not worn in the case of a biking incident.

Plan Restrictions
All of the religiously exempt organizations which are offering health care reimbursement plans have morals clauses based on their religious beliefs and these preclude coverage for any of the following conditions:
Abortion
Alcoholism or alcohol related conditions
Birth control of any kind
Drug addiction
Invitro fertilization
Sterilization
Treatment not vetted through church based principles

In the case of Christian Care Ministries, any female who becomes pregnant outside of marriage will be subject to their morals clause and neither the baby nor the mother are eligible for health care reimbursement. 


Maternity Coverage Restrictions
Maternity coverage has no limit under the national insurance exchange options, but under the Christian Care Ministry program wedded mothers must contribute a $1,250 co-payment and the well child care is limited to $775 for two years. Unwed mothers get zilch.

Enrollee Contributions to Religious Health Share Programs
The religious organizations all have monthly contributions into the ministries’ health plan and here are their schedules which were drawn from their web sites:
Christian Ministries-Defines enrollee costs per unit; $150 per Gold Plan unit, $85 for Silver Plan unit, and $45 for Bronze plan units
Samaritan Ministries-Contribution is based on the size of the family, $495 for a family of four (less if you are under 25)
Christian Care Ministry-Contribution is based on the age of the eldest family member; $713-$325 per month for a family of four; if the member is able to demonstrate healthiness the premiums are lower; all members pay a $5 per month billing fee.

Regulating Exempt Entities Offering Health Care Reimbursement
These religious health sharing plans are exempt from federal regulations except for the minimal requirement to make an annual filing to the Internal Revenue Service. Essentially they function as large self-insured health plans, which are not subject to the McCarran Ferguson Act, and there is no statewide regulatory oversight. This means that contributions made to these church groups are not insured or monitored by any independent regulatory agency. Although, Christian Ministries does abide by the consumer protections under the Sarbanes Oxley provisions and Samaritan Ministries does pay for an independent audit each year. Under the Affordable Care Act insurance companies have to disclose how they spend your insurance premiums and if they collect too much money, they actually pay refunds. Religiously exempt plans are not subject to strict reporting standards on how member contributions are used.

Conclusions
The religiously exempted health care plans have designed their medical sharing programs to limit their liability for large long term health cost exposure and to offer enticements for the young and healthy folks to join. This is precisely what some private employer groups used to do before the government put a stop to this discriminatory practice.  Another extraordinary fact was the amount of cost-sharing that members of these religiously exempt plans happily accepted and still believed they were being well served. For example, an Ohio family reported feeling blessed to only have to share expenses for $51,884 for an illness which ran $149,350, as proclaimed on the Christian Healthcare Ministries web site.[7]  Excuse me, but that means the Coup family paid 35% of the entire tab, quite possibly with smaller provider discounts than the insurance companies negotiate. This type of plan may be OK for the very wealthy, but it hardly seems doable for the middle class and working class low-income families of America.

This article was written by Roberta E. Winter, MHA, MPA, and independent health care analyst and author of Unraveling U.S. Healthcare-A Personal Guide, Rowman and Littlefield, 2013. Feel free to share it virally.





[1] http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html?pagewanted=all&_r=0
[2] https://www.healthcare.gov/exemptions/
[3] http://seattletimes.com/html/nationworld/2024241721_healthcareministriesxml.html
[4] http://www.chministries.org/programs.aspx
[5] http://samaritanministries.org/how-it-works/balancing-needs-and-shares/
[6] https://mychristiancare.org/medi-share/
 [7] http://www.chministries.org/testimonials.aspx?type=illness