Updated May 19, 2014
New IRS Frequently Asked Questions
May 19, 2014—The Internal Revenue Service issued a series of frequently asked questions (FAQs) to provide helpful information to new employers and small businesses, and to clarify Employer Healthcare Arrangements.
FAQs addressing Employer Health Care Arrangements, describing how market reforms apply to employer payment plans. The FAQs specifically address arrangements where an employer does not establish a health insurance plan for their employees, but reimburses them for premiums they pay for health insurance, and are considered to be a group health plan. Internal Revenues Service (IRS) Notice 2013-54 explains how the Affordable Care Act’s (ACA) market reforms apply to certain types of group health plans, including health reimbursement arrangements (HRAs), health flexible spending arrangements (health FSAs), and certain other employer healthcare arrangements.
FAQs entitles “Small Business Health Care Tax Credit Questions and Answers: Determining FTEs and Average Annual Wages” define what is meant by “full-time equivalent employee (FTE),” and to whom the term applies. It also clarifies the status of family members, and seasonal workers. The three methods for calculating the total number of hours of service for a single employee for the taxable year is explained: (1) actual hours worked; (2) days-worked equivalency; and (3) weeks-worked equivalency. Employers do not need to use the same method for all employees and may apply different methods for different classifications of employees if the classifications are reasonable and consistently applied. The FAQs also include: how to determine the number of FTEs; how to determine an employer’s average annual wages; how average annual wages and FTEs are calculated when the employer has a short taxable year; and how small business tax credits are impacted in different scenarios.
On Feb. 10, 2014, the IRS and Treasury issued final regulations on the Employer Shared Responsibility provisions in the ACA. The IRS has just issued supporting guidance in a set of FAQs addressing the following issues:
- Basics of the Employer Shared Responsibility Provisions
- Which Employers Are Subject to the Employer Shared Responsibility Provisions
- Identification of Full-time Employees
- Liability for the Employer Shared Responsibility Payment
- Calculation of the Employer Shared Responsibility Payment
- Making an Employer Shared Responsibility Payment
- Transition Relief
- Basics for Small Employers
- Related Provisions
- Additional Information
Open Enrollment Extension With "Special Enrollment Period "
March 31 marks the close of the 2014 Exchange open enrollment period and the Centers for Consumer Information and Insurance Oversight (CCIIO) is reaching out to consumers who may not have fully completed the enrollment process as of that date, or had some problem during the process which resulted in an incomplete application. Consumers who were “in line” or had started the enrollment process prior to March 31, 2014,will be able to select a plan through April 30. The administration has published guidance regarding the process and issued an extension of that deadline by creating a special enrollment period for certain consumers whose circumstances hindered enrollment in an Exchange. Circumstances that may allow for a limited Circumstance Special Enrollment Period include:
(1) Exceptional Circumstances—A consumer faces exceptional circumstances as determined by CMS, such as a natural disaster, medical emergency, and planned system outages that occur on or around plan selection deadlines.
(2) Misinformation, Misrepresentation, or Inaction—Misconduct by individuals or entities providing formal enrollment assistance (like an insurance company, Navigator, certified application counselor, Call Center Representative, or agent or broker) resulted in one of the following:
- A failure to enroll the consumer in a plan,
- Consumers being enrolled in the wrong plan against their wish,
- The consumer did not receive advanced premium tax credits or cost-sharing reductions for which they were eligible.
(3) Enrollment Error
(4) System errors related to immigration status
(5) Display Errors on Marketplace website
(6) Medicaid/CHIP-Marketplace transfer
(7) Error messages
(7) Unresolved casework
(8) Victims of domestic abuse
(9) Other system errors
CCIIO has established a process to initiate this “special enrollment period” and published guidance (Exchange specific guidance)for consumers wishing to continue the process of enrollment. CCIIO is anticipating that coverage for consumers who have paid their first month’s premium by the deadline set by their chosen insurance company will have a May 1 coverage effective date.
IRS Issues Transitional Relief for Certain Taxpayers from Shared Responsibility Payment Requirements
Jan. 23, 2014—The Internal Revenue Service (IRS) issued a new notice (Notice 2014-10) offering relief to individual taxpayers from the Affordable Care Act (ACA) shared responsibility payment requirements because they have limited-benefit coverage and don’t qualify as minimum essential coverage. The transitional relief will cover months in 2014 in which individuals that have certain Medicaid coverage or are military retirees with limited-benefit coverage. Minimum essential coverage provisions in the ACA failed to address whether these plans or other forms of government-sponsored programs meet the requirements. The relief only applies to the determining a taxpayer’s individual shared responsibility payment for not maintaining minimum essential coverage in 2014. Proposed rules were also published and provide several other measures related to calculating an individual’s required contribution for coverage under an employer-provided plan. The proposed rules request comments which should be submitted by April 24, 2014.
CRS Report Identifies Proposed and Final Rules Expected for Affordable Care Act Implementation
A Congressional Research Service (CRS) report was released Jan. 2, 2014 entitled "Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act: Spring 2013 Unified Agenda" and examines the Spring 2013 edition of the Unified Agenda and identifies proposed and final rules and long-term regulatory actions that were expected to be issued pursuant to the ACA in the 12 months following its publication. To identify those upcoming rules and actions, CRS searched all fields of the Unified Agenda (all agencies) using the term “Affordable Care Act,” focusing on the proposed rule and final rule stages of rulemaking, as well as the “long-term actions” category.
In this edition, agencies reported 20 proposed rules and 23 final rules that they expect to issue pursuant to the ACA within the 12 months following the Agenda’s publication. Agencies also reported a total of 13 long-term regulatory actions and 17 completed actions. Having a sense of what rules agencies are going to issue and when they are going to issue those rules can help Congress to provide oversight over the regulations that are issued pursuant to the ACA. The rules that agencies issue pursuant to the ACA are expected to have a major impact on how the law is implemented.
President Obama’s ACA Proposal Addressing Insurance Cancelations
Nov. 15, 2013—In a midday press conference November 14, President Obama proposed that his administration would follow a “transitional” policy permitting health insurers to choose to continue coverage that would otherwise be terminated or canceled and affected individuals and small businesses (where policies were canceled) may choose to re-enroll in coverage. However, plans going forward in 2014 would be closed to anyone not currently enrolled. The decision was designed to ease the impact on millions of consumers who have received cancelation notices in recent weeks.
In a letter to state insurance commissioners, Gary Cohen, Director of the Center for Consumer Information and Insurance Oversight (CCIIO), Centers for Medicare and Medicaid Services (CMS) at the U.S. Department of Health and Human Services explained that health insurance coverage in the individual or small group market that is renewed for a policy year starting Jan. 1, 2014, and Oct. 1, 2014, and associated with group health plans of small businesses, will not be considered to be out of compliance with specific market reforms and under specified conditions which are outlined in the letter.
The U.S. House of Representatives is scheduled to vote on a separate measure introduced by Representative Upton (R-MI), ‘‘Keep Your Health Plan Act of 2013’’ (H.R. 3350). The bill would permit a health insurance issuer that has in effect health insurance coverage in the individual market as of Jan. 1, 2013, to continue offering the coverage for sale during 2014 outside of a health care exchange established under the Patient Protection and Affordable Care Act (ACA) and treats the coverage as a grandfathered health plan for purposes of an individual meeting the requirement to maintain minimum essential health coverage. Minority Leader Pelosi announced that she is also working on a “legislative fix,” but there are no details available on her approach.
Responses to the Proposal
Health insurers, insurance commissioners and actuaries all seem less than enthusiastic about proposals that would delay implementation of the insurance reforms or the individual mandate because of the impact it would have on the financial viability of the health care marketplaces and on insurance premiums. In response to the President’s announcement, America’s Health Insurance Plans’ (AHIP) President and CEO Karen Ignagni responded to the proposal by the administration related by saying, “Changing the rules after health plans have already met the requirements of the law could destabilize the market and result in higher premiums for consumers. Premiums have already been set for next year based on an assumption of when consumers will be transitioning to the new marketplace.” She went on to say, “Additional steps must be taken to stabilize the marketplace and mitigate the adverse impact on consumers.”
The American Academy of Actuaries also responded by cautioning state and federal policymakers who are considering action to recognize potential consequences of taking action on the proposal. They cautioned saying, “changing the ACA provisions could alter the dynamics of the insurance market, creating two parallel markets operating under different rules, thereby threatening the viability of insurance markets operating under the new rules.”
The President’s remarks may be viewed on YouTube.
FACT SHEET: New Administration Proposal To Help Consumers Facing Cancelations
Initial Marketplace Enrollment Data
Nov. 14, 2013—After an inaugural month plagued with problems, the Department of Health and Human Services (HHS) has released the initial open enrollment-related data for the new health insurance Marketplaces during period Oct. 1 through Nov. 2, 2013. According to the report, 106, 185 enrollees have chosen their health plans for coverage that will begin Jan. 1, 2014. The Office of the Assistant Secretary for Planning and Evaluation (ASPE) has published an issue brief providing analysis of the initial figures which represents only 22 percent of the Congressional Budget Office (CBO) estimates of seven million in 2014. Based on the available data, 846,184 completed applications were submitted to Marketplaces during the first month. Of the 106,185 individuals who selected a plan, 79,391 were plans in State-based Marketplaces (SBMs), and 26,794 in Federally-facilitated Marketplaces (FFMs). Enrollment includes people who have selected a qualified health plan, and who either have or haven’t paid the first month’s premium.
From the first day technology supporting the marketplace enrollment, especially the HealthCare.gov website for the FFMs in 36 states, has experienced glitches in the system, and shown security problems as well as failing to handle the volume of consumers enrolling that would be necessary to reach enrollment projections. A total 846,184 applications were completed during this period across Marketplaces including 326,623 completed applications submitted to SBMs, and 519,561 submitted to the FFMs. In addition to the electronic applications, the FFM also has 259,107 additional paper and call center applications that are not included in this total. The initial open enrollment period was set to end March 15, 2014 but has been extended to the end of March based on the initial complications consumers experienced. For coverage beginning Jan. 1, 2014, individuals must submit their first-months premium by Dec. 15, 2013.
HHS Press Release
Health Reform Back in the Courts
On October 22, a U.S. District Court judge ruled that a lawsuit challenging a major health reform regulation may proceed. Key provisions in the Affordable Care Act (ACA) designed to make health insurance more affordable are central to the success or failure of the health law. To make the purchase of coverage manageable for low-income families, the ACA provides subsidies to individuals whose incomes are at or below 400 percent of the federal poverty level (FPL) through tax credits if coverage is purchased through a health insurance exchange. The ACA directs that a health insurance exchange be established in every state, and in the absence of state action to do so, the ACA directs the federal government to establish and operate the exchange. In two separate sections the law provides for the establishment and operation of an exchange, in one scenario by a state and in the other by the federal government. The ACA specifically provides premium assistance tax credit to individuals enrolled in a state exchange, but remained silent on the issue in relation to a federal exchange.
The Internal Revenue Service (IRS), who was charged with the distribution of health insurance tax credits, issued final rules granting subsidies in the states where a federally operated exchange will be in existence. The IRS rule states that subsidies will be available to anyone “enrolled in one or more qualified health plans through an exchange,” and then defines “state exchanges, regional exchange, subsidiary exchange, and federally facilitated exchange.”
In May of 2013, a group of 12 plaintiffs, individuals and employers, filed suit in the U.S. District Court for the District of Columbia claiming the IRS rule is in violation of the explicit provisions of the ACA. Under the Administrative Procedure Act, agency action must be set aside if it exceeds statutory jurisdiction or is not in accordance with the law. In Halbig v. Sebelius, the plaintiffs claim that the IRS went beyond its legal authority as set up under the ACA when it issued a rule allowing for refundable tax credits–subsidies–for individuals who buy their health insurance through a federally established and operated exchange. “The IRS rule we are challenging is at war with the act’s plain language and completely rewrites the deal that congress made with the states on running these insurance exchanges,” said Michael Carvin, a partner at law firm Jones Day who is representing the challengers.
In a three hour hearing Oct. 22, the U.S. District Court for the District of Columbia denied motions by the administration to dismiss the case, and the plaintiffs for preliminary injunction which would block the governments’ ability to offer subsidies. If the IRS regulations are ruled invalid, individuals in states with a federal or partnership exchange will not receive premium assistance tax credits. If the plaintiffs prevail, then premium assistance tax credits will only be available in 18 states and D.C.
Judge Paul L. Friedman, who heard arguments on the motions Monday, put the case on an expedited schedule and declared he would rule on the merits on or before Feb. 15, 2014. There are now four cases, Halbig v. Sebelius, Pruitt v. Sebelius, King v. IRS, and Indiana v. IRS challenging the IRS regulation, and overall there are at least six lawsuits against the healthcare law pending in courts around the country.
Health Insurance Marketplaces are Open for Business
On Oct. 1, 2013, Health Insurance Marketplaces (or Exchanges) established under provisions of the Affordable Care Act (ACA) began enrollment in each state. Open enrollment will run from Oct. 1, 2013 through March 31, 2014. Health coverage obtained under the marketplaces begins Jan. 1, 2014. The U.S. Department of Health and Human Services (HHS) will support or fully run the Health Insurance Marketplace in 36 states, where at least two different health insurance carriers will offer an average of 53 qualified health plan choices in those states. States will operate the exchanges in all the other states and the District of Columbia.
A Sept. 25, 2013 HHS report provides examples of the health plan choices and premiums that will be available in the federally involved marketplaces. The report also includes similar information that is publicly available from the 11 states and the District of Columbia that are implementing their own marketplace.
As of Oct. 8, there also is a consumer price comparison feature on HealthCare.gov that allows any interested person to examine the range of prices and benefits for his or her county prior to giving their name or personal information or establishing a personal account.
U.S. Department of Health and Human Services
Affordable Care Act Health Insurance Marketplace Outreach and Enrollment Toolkit for Elected Officials
At the NCSL Health Summit in Atlanta, Georgia, Department of Health and Human Services Secretary Kathleen Sebelius unveiled a new outreach and enrollment toolkit for elected officials. The toolkit provides an overview of the new marketplaces that will go into effect January 1, 2014: a sample outreach and enrollment plan; sample materials for newsletter articles, and multipurpose messages; information on community resources; frequently asked questions; and HHS regional contact information. Open enrollment begins October 1, 2013 and last through March 31, 2014.
New Internal Revenue Service (IRS) Website on the Affordable Care Act (ACA) Tax Provisions
The IRS launched a new website August 15 outlining the ACA tax related provisions. The web page is divided into three main sections focusing on individuals and families, employers, and other organizations. It offers information concerning open enrollment for the new marketplaces ub 2014, filing requirements, premium tax credits, and links to legal guidance and other resources within the federal government.
The Centers for Medicare and Medicaid Services (CMS) Releases New Guidance for Eligibility Reviews Under the Payment Error Rate Measurement (PERM) and Medicaid Eligibility Quality Control (MEQC) Programs
August 15, 2013—CMS released new guidance to states on eligibility reviews under the PERM and MEQC programs to reflecting the changes to the way state will adjudicate elligibilty for applicants for Medicaid and the Children's Health Insurance Program (CHIP) starting in 2014. CMS will be implementing an annual 50-state pilot program strategy in January 2014 for fiscal years (FY) 2014 through 2016. This initiative will help inform CMS's approach to rulemaking that will undertake prior to the resumption of the PERM eligibility measurement component in FY 2017. The PERM program was developed in response to the Improper Payment Information Act (IPIA) of 2002 which focused on reducing improper payment across the federal government. The reviews take place on a rotating cycle with one third of states being reviewed each year. Under MEQC, states must annually demonstrate the accuracy of their Medicaid eligibility determination process.
CMS is implementing an interim change in methodology for conducting Medicaid and CHIP eligibility review. Instead of the current PERM and MEQC review requirements in FY 2014 through 2016, all states will participate in the eligibility review pilot to provide more targeted, detailed information on the accuracy of eligibility determinations. CMS is working with states to develop pilot specifications and tools, and will be providing additional technical guidance and assistance going forward. Refer all questions to Chrissy Fowler at (410) 786-9232 or Barbara Richards at (410) 786-5920.
CMS Posts Arkansas Expansion Proposal
CMS has posted for public comment Arkansas's Medicaid expansion proposal, the Arkansas Health Care Independence Demonstration. Under the proposed demonstration waiver, Arkansas would use premium assistance to purchase coverage within qualified health plans (QHPs) offered in the individual market through the new marketplace for individuals eligible for coverage under Medicaid who are either (1) childless adults ages 19 to 65 with incomes at or below 138 percent of the federal poverty level (FPL) or (2) parents between the ages of 19 and 65 with incomes between 17 and 138 percent of the FPL. Arkansas has opted to operate a partnership exchange with the federal government in which they wil share responsibilities in the opration of the exchange. The demonstration will be statewide and will operate during calendar years 2014, 2015, and 2016. Arkansas anticipates that approximately 225,000 individuals will be eligible for the demonstration. The state has already received conceptual approval for the concept, and in the process for final approval CMS will be accepting public comments until September 7, 2013. Comments may be posted directly on the CMS Idea Factory web page.
CMS Releases Final Navigator Rule
CMS released final rules governing the operation of Navigator and non-Navigator assistance personnel programs in Federally-facilitated Exchanges, including State Partnership Exchanges,and to non-Navigator assistance personnel in State Exchanges, and the non-Navigator assistance personnel in State Exchanges that are funded through federal Exchange Establishment grants. It also finalizes the requirement that Exchanges must have a certified application counselor program.
The rule creates conflict-of-interest, training and certification, and meaningful access standards; clarifies that any licensing, certification, or other standards prescribed by a state or Exchange must not prevent application of the provisions of title I of the Affordable Care Act (ACA); adds entities with relationships to issuers of stop loss insurance to the list of entities that are ineligible to become Navigators; and clarifies that the same ineligibility criteria that apply to Navigators apply to certain non-Navigator assistance personnel.
The final rule also directs that each Exchange designate organizations which will then certify their staff members and volunteers to be application counselors that assist consumers and facilitate enrollment in qualified health plans and insurance affordability programs, and provides standards for that designation.
CMS Releases Eligibility Final Rule
CMS published a final rule July 15, 2013 implementing provisions of the ACA finalizing new Medicaid eligibility provisions; changes related to electronic Medicaid and the Children’s Health Insurance Program (CHIP) eligibility notices and delegation of appeals; modernizing and streamlines existing Medicaid eligibility rules; revising CHIP rules relating to the substitution of coverage to improve the coordination of CHIP coverage with other coverage; and amends requirements for benchmark and benchmark-equivalent benefit packages to ensure that these benefit packages include essential health benefits and meet certain other minimum standards.
This rule also implements specific provisions including those related to authorized representatives, notices, and verification of eligibility for qualifying coverage in an eligible employer-sponsored plan for Affordable Insurance Exchanges. This rule also updates and simplifies the complex Medicaid premium and cost sharing requirements, to promote the most effective use of services, and to assist states in identifying cost sharing flexibilities. It includes transition policies for 2014 as applicable. The effective dates for provisions in the final rule vary, but all will be in complete effect as of January 1, 2014.
Administration Delays Employer Mandate Enforcement
On July 2, 2013, Assistant Secretary for Tax Policy Mark J. Mazur posted an announcement on the Treasury Notes Blog that the Department of the Treasury would be providing an additional year before implementing the ACA mandatory employer and insurer reporting requirements. The ACA requires that health insurance issuers, self-insuring employers, government agencies, and other providers of health coverage annually report information regarding the health insurance which employers offer to their full-time employees. The statute imposes a penalty on large employers, employers with more than 50 employees, who fail to offer minimum essential coverage to its full-time employees (and their dependents) under an eligible employer-sponsored plan. The statute defines a full time employee as one who works at least 30 hours per week. The annual penalty is $2000 times the number of employees and is assessed monthly for any month in which coverage is not offered. An Internal Revenue Service notice released July 10 states that the transition relief will provide additional time for provide employers, insurers, and other providers of minimum essential coverage time to adapt their health coverage and reporting system. According to a report by PricewaterhouseCooper, the majority of private companies (56 percent) say they’re already in compliance with the upcoming provisions, and 72 percent consider themselves prepared for the next wave of the ACA’s requirements.
The action has drawn criticism from Republican Committee leaders in the House who have requested that the Congressional Budget Office (CBO), in consultation with the Joint Committee on Taxation, provide estimates of the announcement’s full budgetary effect. Proposed rules for the information reporting provisions are expected to be published this summer. The House plans to vote on a measure soon that will delay by one year the implementation of both the individual mandate and the employer mandate elements of the ACA. House Speaker Boehner said the measure would formally put the administration’s delay into law, while providing parity for the individual side.
White House Blog-- http://www.whitehouse.gov/blog/2013/07/02/we-re-listening-businesses-about-health-care-law
IRS Notice-- http://www.irs.gov/pub/irs-drop/n-13-45.PDF
Commonwealth Fund Report: Implementing The Affordable Care Act: Key Designs for State-Based Exchanges, July 2013
This report examines key design decisions made by the 17 states and the District of Columbia that chose to establish a state-based exchange. The analysis finds that states made significant progress in structuring their exchanges, with states varying in their design decisions. Many states expect to exceed some federal requirements—to collect and display quality data, for instance—for 2014. These findings suggest that states capitalized on the flexibility provided by the Affordable Care Act to tailor their exchanges to their unique needs and made decisions with an eye towards outcomes, such as enrollment, consumer experience, and sustainability. These findings also suggest that states’ initial decisions will inform future exchange implementation and that states will adjust their decisions while continuing to adopt innovative approaches to accomplish policy goals. (See an interactive map for the status of each state's marketplace.)
New Congressional Research Service Reports Released
The Congressional Research Service (CRS) released two new reports focusing on employer penalties and small business. The first report, Potential Employer Penalties Under the Patient Protection and Affordable Care Act, was published July 3, 2013 and provides information on the statutory requirements and the proposed regulations issued to implement these statutory requirements in December 2012. IT does not yet reflect the proposed administration changes regarding the employer mandate. The second report, Health Care Reform and Small Business, was published July 5, 2013 and considers issues in the employer penalty for small business.
NCSL State Federal Relations Staff Contacts
Joy Johnson Wilson, NCSL Federal Affairs Counsel, Health Policy Director at firstname.lastname@example.org or Rachel B. Morgan RN, BSN, NCSL Health Committee Director, at email@example.com .