ppaca/obamacare: what employers need to know

PPACA/OBAMACARE:

WHAT EMPLOYERS NEED TO

KNOW

Charles R. Bailey

Bailey & Wyant, PLLC

What is the Affordable Care Act?

The Patient Protection and Affordable Care Act, 42

U.S.C. § 300, was passed by Congress to ensure

access to qualify affordable health care and

transform the health care system to control costs.

The Congressional Budget Office projects that after

the PPACA is paid for, 94% of all Americans will

have health coverage.

Elimination of Discriminatory Practices

The PPACA eliminates pre-existing conditions

exclusions for adults starting on January 1, 2014,

42 U.S.C. § 300 gg-3.

All Americans are required to have insurance which

is expected to reduce the potential additional costs

of covering these conditions. 26 U.S. C. 5000A, 42

U.S.C. § 18091.

Tax credits will ensure affordability to all families.

26 U.S.C. § 36B.


The PPACA also eliminates:

Lifetime and unreasonable annual limits;

Prohibits rescissions of health insurance policies;

Assists individuals with pre-existing conditions;

Requires coverage of preventative services and immunizations;

Extend dependent coverage up to age 26;

Develop uniform coverage documents for apples-to-apples comparisons when shopping for insurance.


PPACA eliminations, continued:

Cap insurance company, non-medical administrative expenditures;

Ensure consumers have access to effective appeals process and provide consumers a place to turn for assistance navigating appeals process and accessing coverage;

Create a temporary re-insurance program to support coverage for early retirees;

Establish an internet portal to assist Americans in identifying coverage options;

Facilitate administrative simplification to lower health insurance costs. 42 U.S.C. § 300-44

Quality, Affordable Health Care

Starting in 2014 insurance companies may no longer deny coverage or set rates based on health status, medical condition, claims experience, genetic information, evidence of domestic violence, or other health related factors. 42 U.S.C. § 300gg-4.

Premiums may only be based on family structure, geography, actuarial value, tobacco use, participation in a health program, and age (3:1 ratio). Id.

HHS Default Standard Age Curve

Age Premium Age Premium Age Premium

Rate Rate Rate

0-20 0.635 35 1.222 50 1.786

21 1.000 36 1.230 51 1.865

22 1.000 37 1.238 52 1.952

23 1.000 38 1.246 53 2.040

24 1.000 39 1.262 54 2.135

25 1.004 40 1.278 55 2.230

26 1.024 41 1.302 56 2.333

27 1.048 42 1.325 57 2.437

28 1.087 43 1.357 58 2.548

29 1.119 44 1.397 59 2.603

30 1.135 45 1.444 60 2.714

31 1.159 46 1.500 61 2.810

32 1.183 47 1.563 62 2.873

33 1.198 48 1.635 63 2.952

34 1.214 49 1.706 64 and Older 3.000


A qualified health plan offered through the

American Health Benefit Exchange, must provide

essential health benefits including cost sharing limits.

42 U.S.C. § 300gg-6.

Out-of-Pocket requirements cannot exceed those in

Health Savings Accounts, and deductibles in the

small group market cannot exceed $2,000.00 for

individuals and $4,000.00 for a family. Id.


Coverage is offered at four levels with actuarial values defining how much the insurer pays:

Platinum 90%;

Gold 80%;

Silver 70%;

Bronze 60%. Id.

A lower benefit catastrophic plan will be available for individuals under 30 years of age and to others who are exempt from the individual responsibility requirement. Id.

American Health Benefit Exchange

Program

West Virginia has opted to participate in this program.

All plans in the program are accredited for quality,

present benefit options in a standardized manner for

easy comparison, and use one simple enrollment form.

42 U.S.C. § 18041.

Individuals qualified to receive tax credits through an

Exchange must be ineligible for affordable, employer-

sponsored insurance and any form of public insurance

coverage. 42 U.S.C. § 18071.


Program

West Virginia is currently developing the SHOP and individual market exchanges which may be combined into one exchange. SHOP exchanges will have monthly enrollment periods.

Only Highmark BCBS is participating in the individual and SHOP marketplaces.

4 different policies will be available through the SHOP exchange, while 11 are available through the individual marketplace.

West Virginia is also considering participating in a regional exchange with other states, although this is unlikely given the state’s rates of diabetes, obesity, and tobacco use (2nd highest in the country).

West Virginia geographic ratings areas for Individual and SHOP exchanges.


Program

Undocumented immigrants are ineligible for

premium tax credits. Id.

The Secretary of Health and Human Services

(“HHS”) has established a public option—

Community Health Insurance Option—to which

many states have opted. Out.

The PPACA provides support for non-profit member

run insurance cooperatives. 42 U.S.C. § 18042.


Program

Individual states may seek to establish basic health

plans for non-Medicaid, lower-income individuals;

may seek waivers to explore other reform options;

and may form compacts with other states to permit

cross-state sale of health insurance.

Refundable Tax Credits

Americans with incomes between 100 and 400

percent of the Federal Poverty Level (“FPL”) are

eligible for refundable tax credits. 26 U.S.C. § 536B.

The credit is computed by a sliding scale beginning

at 2 percent of income at 100 FPL and phasing out

at 9.8 percent at 300-400 FPL. Id.


When the employer’s offered coverage exceeds 9.8 percent of a worker’s family income, or the employer pays less than 60% of the premium, the worker may enroll in the Exchange and receive credits. Id.

The out-of-pocket maximums ($5,950.00 for individuals and $11,900.00 for families) are reduced to one third for those with incomes between 100-200 FPL, one half for those with incomes between 200-300 FPL, and two thirds for those with incomes in the 400 FPL. Id.


The credits are available for eligible citizens and

legally residing aliens. Id.

Small businesses with fewer than 25 workers are

eligible for a credit providing up to 50 percent of

the total premium cost. Id.

Individual Mandate

Starting in 2014, most individuals are required to

maintain minimum essential coverage or pay a

penalty of $95.00 in 2014, $350.00 in 2015,

$750.00 in 2016, and indexed thereafter. 26

U.S.C. § 5000A.

For those under 18, the penalty is one-half of the

amount for adults. Id.

Individual Mandate

The only exception is for religious objectors, those who cannot afford coverage, taxpayers with incomes less than 100 FPL, Indian tribe members, those who receive a hardship waiver, individuals not lawfully present, incarcerated individuals, and those not coverage for less than three months. Id.

Individuals or families with existing coverage may retain that coverage under the “grandfather” provision. 42 U.S.C. § 18011.

Individual Mandate

Employers currently offering coverage are permitted to continue offering such coverage under the “grandfather” provision. 29 U.S.C. § 218A.

Employer with more than 200 employers must automatically enroll new full-time employees in coverage. Id.

An employer with more than 50 full-time employees that does not offer coverage and has at least one full-time employee receiving a premium assistance tax credit must make a payment of $750.00 per full-time employee after 30 employees. 26 U.S.C. § 4980H.

Individual Mandate

An employer with more than 50 employees that

offers coverage but has at least one full-time

employee receiving the premium assistance tax

credit because the coverage is either unaffordable

or does not coverage 60 of the total costs, will pay

the lesser of $3,000.00 for each employee

receiving a credit or $750.00 for their full-time

employees. Id.

The Role of Public Programs

Under the PPACA, Medicaid is expanded to lower income persons with the federal government assuming responsibility of must of the expansion costs. 42 U.S.C. § 18051.

It provides enhanced federal support for the Children’s Health Insurance Program (“CHIP”), simplifies Medicaid and CHIP enrollments, improves Medicaid services, provides new options for long-term services and supports, improves coordination for dual-eligibles, and improves Medicaid quality for patients and providers. 42 U.S.C. § 1396a.


On January 1, 2014, all children, parents, and

childless adults who are not entitled to Medicare

and who have family incomes up to 133 percent of

FPL will be eligible for Medicaid. Id.

Between 2014 and 2016, the federal government

will pay 100 percent of the cost of covering newly

eligible individuals. Id.


In 2017 and 2018, states that initially covered less of the newly eligible population will receive more assistance than states that covered at least some non-elderly, non-pregnant adults. Id.

States are required to maintain the same income eligibility levels through December 31, 2013, for all adults, and this requirement is extended through September 30, 2019, for children currently in Medicaid. Id.


The income eligibility requirements for CHIP must also be maintained at current incomes levels by States through September 30, 2019. Id.

Individuals must be able to apply for and enroll in Medicaid, CHIP, and the Exchange through state-run websites. Id.

Each program coordinates enrollment procedures to provide seemless enrollment for all programs. Id.


Hospitals will be permitted to provide Medicaid services during a period of presumptive eligibility to members of all Medicaid eligibility categories. Id.

States will be able to offer community based attendant services and supports to Medicaid beneficiaries with disabilities who would otherwise require care in a hospital, nursing facility, or intermediate care facility for the mentally retarded. 42 U.S.C. § 1396a.


State’s disproportionate share hospital (“DSH”)

allotments are reduced by 50 percent once a state’s

uninsurance rates decrease by 45 percent. 42

U.S.C. § 1396r-4.

As the rates decrease, the State’s DSH allotments

are reduced by a corresponding amount, however,

at no time are a state’s allotments reduced by more

than 65 percent compared to its FY2012 allotment.

Id.

Improving the Quality and Efficiency of

Care

FY2013, a value-based purchasing programs for hospitals will link Medicaid payments to quality performance on common high-cost conditions such as cardiac, surgical, and pneumonia care.

The Physician Quality Reporting Initiative extends through 2014, with incentives for physicians to report Medicare quality data—in return for feedback reports starting in 2012. 42 U.S.C. § 1396w-4.

FY2014, long-term care hospitals, inpatient rehabilitation facilities and hospice providers will participate in value-based purchasing with quality measure reporting, with penalties for non-participating providers. 42 U.S.C. § 1395ww.

Prevention of Chronic Disease and

Improving Public Health

The HHS Secretary is charged with convening a

national public/private campaign to raise

awareness for activities to promote health and

prevent disease across and individual’s lifespan.



This includes programs:

For the operation and development of School Based

Health Clinics 42 U.S.C. § 280h-4;

For oral healthcare prevention education campaign 42

U.S.C. § 280k;

Medicare coverage with no co-payments or deductibles

for an annual wellness visit and development of a

personalized prevention program 42 U.S.C. § 1395x;

Prevention of Chronic Diseases and


Programs, continued:

Waive coinsurance and deductibles for most

preventative services, Medicare will cover 100 percent

of the cost Id.;

Authorizes the HHS secretary to modify coverage of

any Medicare-covered preventative service for

consistency with the U.S. Preventative Services Task

Force recommendations;

Prevention of Chronic Diseases and


Programs, continued:

Provide states with an enhanced match if the state Medicaid program covers (1) any clinical preventative services recommended with a grade of “A” or “B” by the U.S. Preventative Services Task Force and (2) adult immunizations recommended by the Advisory Committee on Immunization Practices without cost sharing;

Required Medicaid coverage for counseling and pharmacotherapy to pregnant women for cessation of tobacco abuse;

And grant awards to States for Medicaid Beneficiaries incentives to participate in incentive programs for healthy lifestyles. Id.



The Center for Disease Control also may provide grants to State and large local health departments to conduct pilot programs in the 55 to 64 year old population to evaluate chronic disease risk factors, conduct evidence-based public health interventions, and ensure that individuals identified with chronic disease or at-risk for chronic disease receive clinical treatment to reduce risk. PPACA § 4108.

The CDC will also evaluate wellness programs and provide an education campaign and technical assistance to promote the benefits of worksite health promotion. PPACA § 4303.

Healthcare Workforce

The PPACA provides for competitive grants to establish State partnerships to completed comprehensive workforce planning and to create health care workforce development strategies. 42 U.S.C. § 294r.

The Nursing Student Loan Program is increased and years for nursing schools to establish and maintain student loan funds are updated. 42 U.S.C. § 297b.

A loan repayment program is available for pediatric subspecialties, providers of mental and behavioral health services, Health Professional Shortage Area, a Medically Underserved Area, or a Medically Underserved Population. 29 U.S.C. § 297n.

Transparency and Program Integrity

The PPACA includes new requirements for providing

information to the public on the health system and

promotes new requirements to combat fraud and

abuse in public and private programs. 42 U.S.C. § 1396O-6.

Physician owned hospitals who do not have provider

agreements prior to February 2010 are not

allowed to participate in Medicare. 42 U.S.C. § 1985u.

Transparency and Program Integrity

Drug, device, biological and medical supply manufacturers must report gifts and other transfers of value made to a physician, physician medical practice, a physician group practice, and/or a teaching hospital. Id.

Patients must be informed by the referring physician that imaging services may be obtained from a person other than the referring physician, a physician who is a member of the same group practice, or an individual who is supervised by the physician or by another physician in the group. 42 U.S.C. § 1395m.

Effect on Small and Large Businesses

The PPACA imposes different requirements on

employers, depending on their size and whether

they currently offer health insurance to their

workers. 42 U.S.C. § 4980H.

The law does not apply to employers with less than

50 workers, but does provide health insurance

alternatives to them through state-based Small

Business Health Options Program (“SHOP

Exchanges”). Id.

Effect on Small and Large Businesses

Employers with 50 to 100 workers may face new requirements related to workers’ health insurance coverage, but will also have access to SHOP exchange options. Id.

Employers with more than 100 workers may have new requirements related to their workers’ coverage and will not have access to SHOP exchanges before 2017. PPACA § 1311(b)(1)(B).

Large employers may experience higher costs associated with increased take-up of the policies they offer their workers, due to the new requirements for individuals to obtain health insurance coverage. PPACA § 1302.

Small Employers

The PPACA provides some financial assistance (i.e.

tax credits) for some small employers to maintain or

begin offering coverage to their workers. 26 U.S.C.

§ 4980H.

These credits, available in 2010, provide an offset

of a portion of the purchase of insurance by low-

wage employers with 25 or fewer workers. 26

U.S.C. § 45R.

Small Employers

These credits can provide up to 35 percent of the

employer’s premium contribution, and are available

through 2014. Id.

Credits for up to 50 percent of the employer’s

contribution will be available on January 1, 2014,

for coverage purchased through the exchange. Id.

Small Employers

Waiting periods must not exceed 90 days and insurance must eliminate lifetime and annual benefit limits.

All small group market plans are required to meet essential benefit requirements, be rated consistent with rating limits in the law, and limit deductibles to $2,000.00 for individuals and $4,000.00 for family coverage (unless other employer contributions offset additional deductible amounts). 29 U.S.C. § 45R.

Small Employers

Annual cost sharing for the plans is limited to the current Health Savings Account Limits ($5,959.00 for individuals and $11,900.00 for families).

Small employers currently offering coverage can continue providing this coverage to their workers, with their current policies being “grandfathered” in and exempt from most of the law’s regulatory reforms and new essential benefit definitions. PPACA § 1251.

Small Employer

Once an employer terminates a grandfathered policy,

any new coverage purchased through the small group

market is subject to the regulatory reforms and benefit

minimums. Id.

In 2014 all small employers will have the option of

purchasing insurance coverage for their workers through

the new SHOP exchanges.

The states may combine the SHOP and individual

exchanges or develop separate exchanges. Id.

Small Employer

These regulations are intended to make small group and individual markets coverage more inclusive and accessible for all, regardless of health status. Id.

Those with lower health care needs who purchase in the new market outside grandfathered plans will share in the costs associated with their less healthy counterparts. Id.

Healthier individuals will experience higher premiums but lower administrative costs with offset some, if not all, of those higher costs.

Small Business

Reforms to the individual market will help workers

by providing guaranteed issue, subsidies for

purchasing coverage for those with modest incomes,

and federal regulatory minimums (e.g. new limits on

rating variations and prohibitions against pre-

existing condition exclusion periods, rescissions,

lifetime or annual benefit limits, and medical

underwriting). 26 U.S.C. § 4980H.

Small Business

Small group and nongroup health insurance will be

risk adjusted to ensure one pool of enrollees is not

disadvantaged by enrollment of disproportionate

numbers of individuals with high medical needs.

Medium Business

Employers of 50 or more workers will be accessed financial penalties if their workers obtain subsidized health insurance coverage through health insurance exchanges open to those without employer-based coverage. 26 U.S.C. § 4980H.

If only one employee receives a subsidy through an exchange, the employer will be assessed $3,000.00 for each employee receiving a subsidy or $2,000.00 per full-time employee, whichever is less. Id.

In order for these penalties to apply, a worker would have to face a premium contribution requirement under the firm’s plan of more than 9.5 percent of his or her family’s income then choose to purchase coverage through the nongroup exchange. 26 U.S.C. § 36B.

Medium Business

Employers with 50 to 100 workers have the same

option as their smaller counterparts to purchase

coverage for workers and their dependants through

the health insurance exchanges.

These employers may also purchase new coverage

outside the exchange if they prefer, or not offer

coverage at all. 26 U.S.C. § 4980H.

Medium Business

The essential benefits delineated in the law, as well as

the insurance regulatory reforms on rating and limits on

deductibles and out-of-pocket maximums, apply to this

portion of the market as well.

Employers may retain the health insurance policies they

provided at the law’s enactment under the

“grandfather” provisions, exempting them from most of

the new insurance regulations and benefit maximums.

PPACA § 1251.

Large Business

Large businesses are subject to penalties for employee enrollment in exchanges. 26 U.S.C. § 4980H.

Any employer with one employee enrolling in an exchange will be assessed the same penalties as medium businesses. Id.

Employers with more than 200 workers are automatically required to offer health insurance to all workers and to automatically enroll all full-time workers and all previously enrolled workers in a plan each year. 29 U.S.C. § 218a.

Workers have the option to opt out of they choose. Id.

Large Business

Employers may also choose to decrease their

contributions to employee premiums to keep the

company’s insurance spending from changing

significantly. 26 U.S.C. § 125.

Large businesses also have new tax requirements

when offering prescription drug benefits to their

retirees. 26 U.S.C. § 45R.

Large Business

The Medicaid Modernization Act of 2004 provided

subsidy payments to corporations equal to 28

percent of their costs for retiree prescription

benefits. 42 U.S.C. § 1305.

Prior to the MMA all payments for retiree health

benefits were tax deductible at 100 percent

regardless of whether the employer paid the full

amount or a retiree received a subsidy from the

government. Id.

Large Business

These subsidies continue but firms no longer can

take tax deductions for payments the government

makes. Id.

Large businesses may not purchase coverage

through the SHOP exchanges until 2017. 26 U.S.C.

§ 36B.

In 2017, states can, in their discretion, permit large

employers to obtain coverage through the

exchanges. Id.

Large Business

The University of Virginia recently announced that it was discontinuing health insurance coverage to spouses of employees with access to employer sponsored health insurance. This was based upon UVA being subject to the “Cadillac tax”, which imposes an excess tax on the university. The PPACA will still costs UVA $7.3 million in increased costs for health care.

UPS also announced it was dropping coverage for 15,000 spouses who have coverage available through their employer.

Transitional Reinsurance Fee

The purpose of this fee is to stabilize the premiums in the individual health insurance market between 2014 and 2016.

This fee will be accessed against both insured and self-funded group health plans.

The fee is currently set at $63.00

per employee and eligible dependent enrolled in a policy,

Former employees and their dependents receiving COBRA continuation coverage,

Transitional Reinsurance Fee

For fully funded insurers the fee is paid by insurers. For self-funded plans, third party administrators remit the fee on behalf of their clients.

This fee does not apply to retirees enrolled in Medicare and receiving supplemental coverage from their former employers. The fee will be accessed on retired employees not yet eligible for Medicare and receiving health care coverage from their former employers.

Exempted plans include HCFSAs, HSAs, stand-alone dental and vision plans, most EAPs, disease management and wellness plans.

Definition of Full-Time Employee

IRS January 2, 2013, Proposed Regulations: Measurement, Administration and Stability Periods to Determine Status as a Full-Time Employee for Purposes of the Employer Mandate:

Standard measurement period: 3 months to 12 months determine status during measurement period. That status then applies during the:

Subsequent stability period, regardless of employees number of hours during the stability period. At least 6 calendar months; no shorter than measurement period.

Administrative period. Up to 90 days, overlaps prior stability period.



Basic rules: New Employee Reasonably Expected to Work 30 or more Hours per week as of Start Date and not a seasonal employee.

Employer must offer coverage at or before the end of the employee’s initial three full calendar months of employment.


IRS January 2, 2013, Proposed Regulations:

Measurement, Administration and Stability Periods

to Determine Status as a Full-Time Employee for

Purposes of the Employer Mandate:

New “Variable Hour Employee” or “Seasonal

Employee”

Cannot determine at start date whether employee is

reasonable expected to work on average at least 30 hours

per week over the initial measurement period



Initial Measurement and Administrative Periods for New Variable Hour Employee and New Seasonal Employee

Initial measurement period: a period that begins on any date between the employee’s start date and the first day of the first calendar month following the employee’s start date and is between 3 and 12 months long

Initial administrative period: not longer than 90 days

Initial measurement period plus initial administrative period cannot exceed beyond last day of first calendar month following first anniversary of employment start date.



Initial Stability Period for New Variable Hourly Employee

Initial stability period same as similarly situated ongoing employee

Perform on average 30 hours of service per week during the initial measurement period: stability period must be at least 6 consecutive calendar months but no shorter than the duration of the initial measurement period.

Fail to perform on average 30 hours of service per week during the initial measurement period: stability period during which this employee will not be treated as a full-time employee cannot be more than one month longer than the initial measurement period and cannot exceed the remainder of the standard measurement period + administrative period in which the initial measurement period ends.


IRS January 2, 2013, Proposed Regulations:

Measurement, Administration and Stability Periods to

Determine Status as a Full-Time Employee for Purposes

of the Employer Mandate:

Subsequent Measurement and Stability Periods for New

Variable Hourly Employee

When a new variable hour employee completes an entire

standard measurement period, then the new variable hour

employee must be tested for that standard measurement period

as an ongoing employee.

90 day waiting period

IRS Notice 2012-59:

The waiting period must pass before coverage for an

employee or dependent who is otherwise eligible to

enroll under the terms of the plan are effective.

Conditions for eligibility that are not based solely on

the passage of time are permitted (i.e., employee must

work full-time or work a specified number of hours in a

work period to earn coverage in an eligibility period).

90 Day Waiting Period

IRS Notice 2012-59:

An employer may use a measurement period permitted

in Notice 2012-59 to determine when a employee

satisfies the plan’s full-time eligibility condition and will

not violate the 90 day limit on waiting periods if

coverage is made effective no later than 13 months

from the employee’s start date, plus if the employee’s

start date is not the first day of a calendar month, the

time remaining until the first day of the next calendar

month.

Timeline for Provisions

On January 1, 2013, all Medicare payroll taxes increased 0.9 percent (no indexing of inflation, for a total of 2.35 percent) on wages in excess of $200,000.00 for individuals and $250,000.00 for married joint filers. 26 U.S.C. § 105.

Employers are required to withhold wages paged to any employee in excess of these amounts regardless of the employee’s filing status or spouse’s income. Id.


Medicare tax on individuals equal to 3.8 percent on

the lesser of (i) net investment income (including

interest, dividends, royalties, rents, and passive

income); (ii) the excess of modified income over the

threshold amounts. Id.

Salary reduction contributions to a health FSA

offered through a cafeteria plan are limited to

$2,500.00 Id.

Timeline for provisions

October 1, 2013

Employers required to give existing employees and all new employees information regarding the existence of exchanges, availability of subsidies if the employee purchases coverage through the exchange, and loss of employer contribution toward the cost of coverage if the employee purchases coverage through the exchange. 29 U.S.C. § 218b.

Failure to provide this notice results in a $100.00 a day fine until the notice is sent.


January 1, 2014:

All U.S. citizens are required to have “minimum essential coverage. “ PPACA 1302.

Employers with more than 50 employees who do not offer insurance will be assessed 1/12th of $2,000.00 per month for each full-time employee in the workforce 42 U.S.C. § 4980H (delayed until January 1, 2015).

Guaranteed issue, rating restrictions, elimination of annual limits for essential level of plan benefits, elimination of coverage waiting periods in excess of 90 days delayed until January 1, 2015.


January 1, 2017:

States may permit employers with more than 100

employees to enroll their employees in SHOP

exchanges. PPACA § 1334.

January 1, 2018:

All existing plans must cover approved preventative

care and check-ups without copays.

Questions?

ppaca/obamacare: what employers need to know

Health & Medicine