Checks, balances drove employer mandate delayNews added by Benefits Pro on February 21, 2014
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By Dan Cook

Not unlike the U.S. Constitution, the final rules on the employer mandate under healthcare reform issued by the Treasury Department and the IRS earlier this month begin with a preamble.

But while the Constitution's preamble is a single, lucid paragraph, this one’s 133 pages of obtuse government-speak. And then another 94 pages of definitions, examples and notes.

For anyone who might have missed the news, the Obama administration is giving certain employers extra time before they must offer health insurance to almost all their full-time workers. Under new rules, employers with 50 to 99 workers will be given until 2016 — two years longer than originally envisioned under the Patient Protection and Affordable Care Act — before they risk a federal penalty for not complying.

For HR professionals, the final rules offer the ultimate guide to the relief offered by the government as companies transition their health plans to conform with the PPACA. The best strategy is probably to download a copy, print out two, keep one in the HR office, give the other to the general counsel, then start reading.

Essentially, this epic’s primary co-authors – Kathryn Johnson and Shad Fagerland of the Office of the Division Counsel/Associate Chief Counsel – walk the reader through Treasury/IRS’s process for reviewing comments on the various aspects of the employer mandate regulations, and then for determining whether relief should be granted based on that input.

For lovers of detail, there’s no shortage here. The authors grind exceedingly finely. As much space is given to requests for regulatory changes that were denied by Treasury/IRS as is given to the changes that were granted following the various opportunities for public comment.

But what also comes through is what seems to be a somewhat sympathetic stance -- one some issues -- coupled with a strong current of mistrust of employers on the part of the government.

Overall, the document suggests that the authors understand the realities of business. But time and again they also refer to “the potential for abuse” or misuse of the regulations on the part of employers. Some skepticism is no doubt warranted. But one begins to wonder whether the rules were written to help people get health insurance or to catch employers breaking the rules.

And with so many rules and so many changes to the rules, it will be almost impossible for most companies to get it right the first time. Among the more-important relief provisions:
  • Employers with between 50 and 99 full-time employees got that extra year’s extension, from 2015 to 2016, to provide coverage to employees.
  • The largest of employers still have to comply in 2015. But they got some concessions, including a reduction from 95 percent to 70 percent of employees who must at a minimum be offered insurance. The 95 percent rule was postponed until 2016.
  • Companies with non-calendar-year plans got several concessions to make life just a bit easier for their HR department. If a 2014 non-calendar-year plan spills over into calendar 2015, the transition relief applies for those months. The mandate begins on their plan start date, not Jan. 1, 2015.
  • Dependent coverage has been postponed until 2016.
  • Who constitutes a full-time employee is painstakingly defined by the new rules, and includes hairsplitting around volunteers, students, adjunct faculty, seasonal workers and teachers. Student interns who get paid and work at least 30 hours a week count; students who work as part of a federal work study program don’t. Some volunteer hours count, if any substantial compensation in any form is involved; pure, non-compensated volunteer hours don’t. Teachers are full-time even though most get the summer months off. Adjunct faculty is so sliced and diced that it took the authors three pages to arrive at a formula for determining their hours.
  • Safe harbor rules were amended to give employers greater flexibility in determining whether their insurance meets the act’s affordability requirements.
  • A look-back process is now an option so employers can use the past to forecast the future.
Dig deeper into the document, and you’ll gain an appreciation for the game of chess that the negotiation of the employer mandate has become.

There’s no question the authors view employers as their opponents in the rulemaking process. While Treasury and IRS accepted many employer recommendations, the authors make many references to “the potential for abuse,” often citing that as the reason a “commenter’s” recommendations were rejected.

In explaining why paid intern hours will be counted as hours of service for coverage purposes, the preamblers say, “… Excluding hours of service for which interns or externs receive, or are entitled to receive, compensation from the employer from the definition of hours of service for section 4980H purposes would be subject to potential misuse through labeling positions as internships or externships to avoid application of section 4980H.”

Or how about the way those wily temp agencies tried to slip one past the Obamacare watchdogs?
“Commenters suggested that the rehire rules should be adjusted for employees of temporary staffing firms by reducing the length of the break in service required before an employee can be treated as a new hire from 26 weeks to 4 weeks or some other duration. The final regulations do not adopt this suggestion in part because the adoption of such a rule may encourage employers to use temporary staffing firms to provide firm employees to perform certain services in order to attempt to improperly avoid offering coverage or incurring liability for assessable payments under section 4980H.”

Yet another commenter suggested changes to the rules that might ease things a bit for industries with lots of “high turnover” employees. Not on our watch, the authors responded.

“The Treasury Department and the IRS have concerns about the formulation and application of a special rule in this area. Specifically, the discussion in section II.C.6 of the preamble to the proposed regulations noted that ‘high-turnover’ is a category that would require a complex definition that could be subject to manipulation.”

Despite the document’s clear intent to block employer abuses of the myriad rules around healthcare reform, many concessions were granted. In addition to some of the higher-profile ones mentioned above, other examples of relief for large employers include:
  • No requirement to cover stepchildren or foster children who are dependents of an employee who receives coverage.
  • Assessable payments (read: penalties) won’t be assessed against “any employer that takes steps during its plan year that begins in 2014 (2014 plan year) toward satisfying the section 4980H provisions relating to offering coverage to full-time employees’ dependents.”
  • Employers whose annual coverage begins on the first day of the first payroll period of 2015 rather than on Jan. 1 won’t be assessed payments for the days that the employee was not covered.
  • Employers who are close to the 50-employer trigger point but could go either way will have until April 1 to determine if they are within the 50-employee range and offer coverage, rather than having to do so by Jan. 1.
  • Reducing the period of time to 13 weeks during which a former employee who is subsequently rehired did not work for the company and therefore is categorized as a new hire rather than a continuing employee.
At the end of the day, this is a document that illustrates the degree of difficulty involved in revamping an aging nation’s broken healthcare system. Not unlike the Constitution, it demonstrates a certain flexibility within a defined philosophical framework. And, it acknowledges that mere mortals located in the HR and legal departments of Corporate America will need some time, patience and assistance is figuring out how to integrate these evolving rules and regulations into their benefits strategy.

Originally published on BenefitsPro.com
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