Trumping the Affordable Care Act? Not So Fast – Impact of Executive Order on Employers Unclear

On January 20, 2017, President Trump signed an Executive Order (“Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal,” hereinafter referred to as the “Order”) relating to the future of the Affordable Care Act (“ACA”).  The stated goal is to direct the agencies (IRS, HHS, and DOL) to waive or defer provisions of the ACA that would “impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products or medications.”  Notoriously absent from this list is any mention of employers or plans.  Read More ›

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Will the ACA Stay or Will it Go?

After surviving two Supreme Court cases and numerous repeal efforts, the Affordable Care Act (“ACA”) is in jeopardy again. Despite the law’s uncertainty, employers may want to continue their compliance efforts because: (1) the ACA is currently the law and there are significant penalties for noncompliance; and (2) for the reasons stated below complete repeal is anything but certain.

First, we do not know whether the law will be repealed outright.  Although Republicans control Congress, they do not have a supermajority in the Senate.  This means that, unless current filibuster law changes, Democratic Senators could block a bill to repeal the ACA entirely. Read More ›

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A Little Breathing Room: IRS Extends ACA Reporting Deadline and Good Faith Penalty Relief

The IRS delivered welcome news to employers gearing up to meet the Affordable Care Act’s (“ACA”) information reporting deadlines for the 2016 calendar year. In Notice 2016-70, the IRS extended the deadline to furnish Forms 1095-B and 1095-C to employees.  The new deadlines are provided below.

  Old Distribution Deadline New Distribution Deadline
Form 1095-B (to employees) January 31, 2017 March 2, 2017
Form 1095-C (to employees) January 31, 2017 March 2, 2017

Importantly, the Notice does not extend the deadline for filing Forms with the IRS.  The deadline to file with the IRS remains February 28, 2016 (for paper filings) and March 31, 2017 (for electronic filings). Read More ›

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A Deeper Dive: Employers Receiving Federal Funding May Be Subject to ACA’s Nondiscrimination Rule and Need to Cover Transgender Benefits

In recent months, we have written a fair amount about providing transgender benefits in light of the nondiscrimination provisions of the Affordable Care Act. Our blogs of March 30, 2016 and June 22, 2016 highlight the key contours of the nondiscrimination rule.  In our June 22 post, we mention in passing that the final nondiscrimination rule applies to any health program or activity, any part of which receives funding from the Department of Health and Human Services (“HHS”).  This blog provides additional clarity on what it means for a group health plan or an employer to receive federal financial assistance (“FFA”) and, by consequence, become subject to the nondiscrimination provisions of the Affordable Care Act. Read More ›

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Transitioning to Coverage: Three Things to Know About the New Transgender Healthcare Regulations

On May 18, 2016, the Department of Health and Human Services (“HHS”) issued final regulations implementing the nondiscrimination provisions of the Affordable Care Act. As we discussed in our March 30, 2016 blog, the rule prohibits discrimination on the basis of sex and gender identity in the provision of health programs.  In application, the final regulations prohibit the categorical refusal of coverage to transgender participants and require that individuals be treated consistent with their self-selected gender identity.

  1. When are the final regulations effective?

The final rule generally is effective July 18, 2016. However, group health plans and health insurance need not be modified to comply with the new nondiscrimination rules until the first day of the first plan year (in the individual market, policy year) beginning on or after January 1, 2017. Read More ›

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When Anything Less than 95% is a Failing Grade: An Update on the Employer Shared Responsibility Penalties

As a reminder, effective January 1, 2016, employers must offer minimum essential coverage to 95% or more (up from 70% or more for 2015) of their full-time employees and their dependents each month or pay a very steep penalty.  Missing the mark even slightly, for example coming in at 94%, will require the employer to pay a $2,000 annual penalty for each full-time employee (minus the first 30 full-time employees).

The rules are explained in more detail in our Health Care Reform’s Employer Shared Responsibility Penalties: A Checklist for Employers, which I have updated to reflect certain recent guidance.  Most importantly the revised Checklist:

  •  now reflects how the penalties are adjusted each year (see footnote 7 of the Checklist for more information);
    • the $2,000 subsection (a) penalty is $2,080 for 2015 and $2,160 for 2016.
Read More ›
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Late Or Incorrect Forms 1095-C: The IRS Provides Relief, But Only For Employers Acting In Good Faith To Comply Or Who Missed The Deadline Due To Reasonable Cause

Many employers struggled to furnish correct Forms 1095-C to employees by the March 31, 2016 deadline.  Section 6721(a)(2) of the Internal Revenue Code provides penalties for failure to furnish Forms 1095-C to individuals by the deadline.  Although the presumptive penalty is $250 for each delinquent or incorrect return, the penalty amount may be reduced if Forms are furnished or corrected within 30 days of the filing deadline.  Correction within 30 days lowers the presumptive penalty to $50 per return.  If a failure to correct is not made within 30 days, but is made by August 1, the presumptive penalty is reduced to $100 per return.  Read More ›

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“A Trap for the Unwary” – Does Your Self-Funded Health Plan Provide Transgender Benefits? It Might Need to Soon.

Assistant Secretary of Labor Phyllis Borzi recently offered informal guidance on the broad scope of nondiscrimination regulations proposed under Section 1557 of the Affordable Care Act. During her remarks at the ABA Labor Section Employee Benefits Committee Meeting in February, Ms. Borzi indicated that the proposed regulations would apply to any health plan that receives federal funds, including a self-funded plan that uses a third party administrator that receives federal funds.  Ms. Borzi characterized the proposed regulations as a “trap for the unwary,” noting that many self-funded plans assume that the nondiscrimination rules will not apply to them.  In light of Ms. Read More ›

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IRS Delivers Belated Christmas Gift – Extends ACA Reporting Deadlines

The IRS delivered a late Christmas gift December 28, 2015 when, in Notice 2016-4, it extended the Affordable Care Act (“ACA”) reporting deadlines.  The new deadlines affect distribution and filing of Forms 1094 and 1095 for calendar year 2015 and are provided below.

Section 6055
Health Coverage Reporting
Old Filing Deadline New Filing Deadline
Form 1095-B (to employees) February 1, 2016* March 31, 2016
Form 1094-B (to IRS) February 29, 2016 (paper filing)
March 31, 2016 (electronic filing)
May 31, 2016 (paper filing)
June 30, 2016 (electronic filing)
Section 6056
Employer-Provided Health Insurance Offer and Coverage Reporting
Old Filing Deadline New Filing Deadline
Form 1095-C (to employees) February 1, 2016* March 31, 2016
Form 1094-C (to IRS) February 29, 2016 (paper filing)
March 31, 2016 (electronic filing)
May 31, 2016 (paper filing)
June 30, 2016 (electronic filing)

In light of this transitional relief, the IRS will not accept automatic or permissive extensions for filing Forms 1094 and 1095. Read More ›

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Final Forms and Instructions for ACA Information Reporting Released

The IRS recently released the final forms and instructions for information reporting under the Affordable Care Act (“ACA”).  The final forms and instructions will be used for reporting in 2016 concerning 2015 coverage.  The final forms and instructions can be accessed below.

Form 1094-B

Form 1095-B

Instructions for Forms 1094-B and 1095-B

Form 1094-C

Form 1095-C

Instructions for Forms 1094-C and 1095-C

The final forms do not contain any significant changes from the prior draft versions.  Both sets of final instructions also remain largely unchanged, but they contain a few important modifications with respect to reporting specific types of coverage.  For example, the final instructions modified the rules for reporting multiemployer plan coverage, COBRA coverage, and HRA coverage. Read More ›

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