Hunton Employment & Labor Perspectives

The American Rescue Plan Act (“the Act”) signed in March 2021 provides for a 100% COBRA premium subsidy for certain individuals who are eligible for and enroll in COBRA coverage between April 1, 2021 and September 30, 2021. Employers sponsoring health plans should take action quickly to ensure that the subsidy is properly administered and consider its effects on any planned layoffs or other severance events.

On May 14, 2020, the Department of Health and Human Services (HHS) issued a final rule stating that group health plans, including employer-sponsored health plans, are not required to count the value of drug manufacturer coupons toward participant deductibles and out-of-pocket maximums (the “Final Rule”).  The Final Rule, published in HHS's Notice of Benefit and Payment Parameters for 2021, allows group health plans to exclude the value of drug manufacturer coupons from participant annual cost-sharing amounts even where no medically appropriate generic drug is available.

For at least one more year, health plans, including employer-sponsored plans, will be able to exclude the value of drug manufacturer discounts from participant deductibles and out-of-pocket maximums, even where no medically appropriate generic drug is available.  The Department of Labor (DOL), Department of Health and Human Services (HHS), and the Department of Treasury (collectively, the "Departments") jointly issued a temporary non-enforcement pledge relating to these so-called "accumulator programs" as a result of an apparent catch-22 relating to high-deductible health plans (HDHPs) with health savings accounts (HSAs). 

On October 29, 2018, the Internal Revenue Service, Department of Labor and Department of Health and Human Services (the “Departments”) jointly released proposed regulations in response to President Trump’s executive order calling for an expansion of the ability of employers to offer health reimbursement arrangements (“HRAs”) to their employees and to allow HRAs to be used in conjunction with nongroup coverage.

The IRS recently updated the FAQs on its website regarding the employer mandate to provide some details on the process it will use to impose penalties for failure to provide coverage to “ACA full-time” employees (those working 30 or more hours per week) in accordance with Section 4980H of the Code (often referred to as the “employer mandate”).

On May 4, the House of Representatives passed the American Health Care Act, (AHCA), which is aimed at repealing and replacing portions of the Affordable Care Act (ACA). While many of the changes do not affect employer-sponsored coverage, there are several changes in the bill that are likely to be of interest to employers.

The IRS has issued final versions of Forms 1095-C and 1094-C as well as updated final instructions on completing these forms. While the instructions and forms remain similar to those used last year, there are a few key changes worth noting.

In general, the Forms 1094-C and 1095-C are used by “applicable large employers,” or “ALEs,” to report offers of coverage to their full-time employees (those working 30 or more hours per week) as required under the Affordable Care Act, as well as by self-insured plan sponsors to report individuals covered under their plans.

Earlier this year, the Department of Health and Human Services Office of Civil Rights published final rules implementing Section 1557 of the Affordable Care Act (ACA).  Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability by healthcare providers and group health plans that receive federal financial assistance. The rules include restrictions on discrimination relating to gender identity, as well as requirements regarding accessibility for individuals with limited English and with disabilities.

The Affordable Care Act (ACA) requires the state and federal health care exchanges to notify employers if an employee has been determined to be eligible for a premium tax credit or cost-sharing reduction for exchange coverage. The notices are issued for those individuals who have been determined to be eligible for such a subsidy. As employers begin receiving notices, they should consider how best to track this information and whether it would be worthwhile to appeal the subsidy eligibility determinations where the information is incorrect.

The government has continued to issue a number of regulations and other guidance on the Patient Protection and Affordable Care Act (PPACA) and related health care laws, including the following:

• Final regulations on the use of “bona fide orientation periods” in coordination with waiting periods for health care coverage;
• IRS forms and instructions regarding reporting of health care coverage by health plans and large employers;
• Updated proposed rules on the required Summary of Benefits and Coverage;
• Guidance regarding use of “skinny plans”; and
• Preliminary guidance on ...

The IRS recently issued Notice 2015-16 addressing the excise tax on high cost employer-sponsored health coverage enacted under the Affordable Care Act. This tax, which is commonly referred to as the "Cadillac" tax, will take effect in 2018. While it does not provide definitive guidance on which employers can rely, the Notice does provide some useful insights as to the agency's intended approach regarding key aspects of the tax.

The IRS recently issued final versions of the new Forms 1094-B, 1095-B, 1094-C and 1095-C, along with related final Instructions.  These forms are for reporting of coverage in 2014, but are expected to be similar for reporting for 2015.

In December 2014, the government issued new proposed rules regarding the requirements for providing a summary of benefits and coverage (SBC). Simultaneous with the proposed rules, the government also published an updated SBC template and uniform glossary.

On June 25, the government issued final rules regarding the use of “bona fide employment-based orientation periods” in connection with the Affordable Care Act’s 90 day waiting period limits. These final rules largely track the proposed rules issued in February.

The government has continued to issue a number of regulations and other guidance on the Patient Protection and Affordable Care Act (PPACA) and related health care laws, including the following:

• The “employer mandate” that will take effect in 2015;
• IRS reporting requirements for health plans and large employers;
• The 90-day waiting period limits;
• Transitional reinsurance contributions required to be made by large employers;
• The Mental Health Parity and Addiction Equity Act; and
• Standard transactions under HIPAA.

IRS final regulations issued earlier this year provide guidance on compliance with the employer coverage mandate under the Affordable Care Act (ACA), including determining full-time status and offering coverage with minimum value. In addition, the government has also issued final and proposed regulations regarding 90-day waiting periods under the ACA.

While both sets of final rules largely follow the previously issued proposed rules, there are some key changes of note for employers.

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Even before passage of the Affordable Care Act (ACA), group health plan sponsors and administrators faced a significant array of notice and disclosure obligations.  Those obligations have only increased with passage of the ACA, and in many cases existing disclosure requirements have been revised.  For this reason, we are providing a table summarizing the principal notice and disclosure obligations currently applicable to group health plans, including those required under the ACA.  The first part of the table summarizes disclosure rules applicable to all welfare benefit plans ...

On October 31, 2013, the Internal Revenue Service issued Notice 2013-71, which modifies the “use or lose” rule for flexible spending accounts (FSAs) and permits employers to amend their section 125 “cafeteria” plans to allow employees to carry over up to $500 in unused FSA contributions to the next plan year.

Although the employer shared responsibility (“coverage mandate”) rules under the Patient Protection and Affordable Care Act (PPACA) have been delayed one year (to 2015), there are a number of other PPACA requirements that will still be going into effect in 2014.  For example, the one-year delay does not apply to –

• The final wellness rules;
• The 90-day waiting period limits;
• The preventive care changes; and
• The new cost sharing limits

Plus, employers will soon need to focus again on the coverage mandate compliance process and the related reporting requirements (the initial reports for which will be due in early 2015).  In the meantime, the government continues to issue regulations and other guidance on a variety of matters involving PPACA’s implementation.  

Pundits have written much about the Affordable Care Act’s forthcoming Health Insurance Exchanges, but they have paid little attention to employers’ obligations to notify employees of those Exchanges.  The state-based Exchanges, also known as the Health Insurance Marketplace, are expected to go into effect on January 1, 2014, with open enrollment beginning on October 1, 2013.  Employees may purchase health insurance through these Exchanges.

The Patient Protection and Affordable Care Act requires that employers report the aggregate cost of “applicable employer-sponsored coverage” on Form W-2.  (See our August 6, 2012, posting entitled “Reminder – 2012 Form W-2 Reporting For Group Health Plans” for an explanation of this requirement.)  Applicable employer-sponsored coverage generally includes coverage under any group health plan made available to employees by an employer that is excludable from gross income.  In providing an enumerated list of the types of coverage that are exempt from the reporting requirement, the Internal Revenue Service explained in Notice 2012-9 (Q&A-12) that the term “applicable employer-sponsored coverage” generally does not include any coverage for HIPAA-excepted benefits, other than coverage for on-site medical clinics.

Beginning in 2014, sponsors of self-insured group health plans (and insurers for insured group health plans) will be required to pay an annual fee to fund the Transitional Reinsurance Program under the Patient Protection and Affordable Care Act.  The Department of Health and Human Services (HHS) recently proposed additional regulations for this program.  Here is a quick overview of how the program will work under the proposed rules.

Implementation of the health care reform law now appears to be a certainty. We have already begun to see a flood of regulations creating new rules around the law’s implementation requirements, most of which will occur in 2013 and 2014.

In order to meet the burgeoning needs and concerns of our clients, the Hunton & Williams Health Care Reform team will be presenting a series of webinars over the coming months.

Please join us for the first in the series
 
Health Care Reform Is Here to Stay – What Do Employers Do Now?

Thursday, January 17, 2013
1:00 – 2:30 p.m. EST

Register Now

The Patient Protection and Affordable Care Act provides that group health plans may not apply a waiting period of more than 90 days for plan years beginning after December 31, 2013 (January 1, 2014 for calendar year plans).  IRS Notice 2012-59, which was issued earlier this year, provides guidance on how employers should apply this rule.

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Is your payroll system ready for the new reporting requirements for group health benefit costs under The Affordable Care Act?  Under IRS guidance, the Form W-2 reporting of group health plan coverage costs will become mandatory this year.  Beginning with the 2012 Forms W-2 due in 2013, employers must report the aggregate value of certain employer-provided health coverage in Box 12 (with Code DD).  For many employers, this will involve substantial groundwork and will generally require that any needed payroll reporting changes be done before year-end.

Group health plan sponsors have an additional date to add to their calendars, thanks to the Patient Protection and Affordable Care Act (ACA). The new summary of benefits and coverage (SBC) disclosure rules for group health plans go into effect soon. Disclosures that tell participants what their plan covers and what it costs must be provided starting with enrollment periods and plan years that begin after September 22,  2012. Attached is an overview of what you need to know now about the new SBC requirements.

Is your cafeteria plan ready for the new health care flexible spending account (FSA) employee contribution limit?  Beginning in 2013, the Patient Protection and Affordable Care Act (ACA) limits the maximum amount that an employee can elect to contribute to a health care flexible spending account (FSA) to $2,500 per year.  While plan sponsors could, prior to ACA, impose limits on the amount of elective employee contributions to a health care FSA, there was no statutory limit.

Health plan sponsors should be aware of new fees taking effect soon that are imposed by the Patient Protection and Affordable Care Act (ACA).  Here is a quick review of the fees as described in the recent proposed Treasury Regulations.

Today, the U.S. Supreme Court issued its decision in Nat’l Federation of Independent Business v. Sebelius, the constitutional challenges to the Patient Protection and Affordable Care Act (“PPACA”). In upholding the constitutionality of PPACA, the Court held:

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Despite the on-going litigation and Republican opposition in Congress, the Administration continues to work on implementing the Patient Protection and Affordability Care Act of 2010, as amended (the “Act”). Set out below is a brief review of the following important developments from the past 12 months.

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The Obama administration continues to move forward on implementing the Patient Protection and Affordable Care Act of 2010, as amended (the "Health Care Reform Act"), as it has recently issued additional guidance on the grandfather rules for group health plans and the new Form W-2 rules for reporting the cost of employee group health coverage. Of note, the guidance reaffirms that the W-2 reporting of group health coverage costs will not be required until 2012, which means that any such reporting for 2011 will remain optional. The guidance also provides some important clarification on ...

Thursday, February 24, 2011
12:00 p.m. - 1:00 p.m. CST

The program will provide an overview of the current state of the health care reform legislation, including the political climate, recent and expected legislative activity, litigation questioning the constitutionality of the law, and a practical look at what employers, group health plans, and health care providers should be doing now.

Yesterday, United States District Judge Henry E. Hudson (Eastern District of Virginia) found unconstitutional the Patient Protection and Affordable Care Act (PPACA) provision which requires most uninsured Americans to obtain coverage or pay a penalty.  

Please join us for a complimentary webinar program on Thursday, November 4,  covering recent developments on:

• Enforcement
• "Grandfathered" Status
• The Immediate Group Health Plan Reforms, including
  • Adult Child Coverage
  • Retroactive Rescissions
  • Lifetime/Annual Limits
  • External/Internal Appeals Process
  • Preventative Services and Other Patient Protections
• W-2 Health Benefits Reporting
• FSA/HRA Reimbursement of OTC Drugs
• Early Retiree Reinsurance Program

Please join us for a complimentary webinar program on Thursday, November 4,  covering recent developments on:

• Enforcement
• "Grandfathered" Status
• The Immediate Group Health Plan Reforms, including
  • Adult Child Coverage
  • Retroactive Rescissions
  • Lifetime/Annual Limits
  • External/Internal Appeals Process
  • Preventative Services and Other Patient Protections
• W-2 Health Benefits Reporting
• FSA/HRA Reimbursement of OTC Drugs
• Early Retiree Reinsurance Program

Hunton & Williams announced today the launch of its new website — the Hunton & Williams Health Care Reform Center, huntonhealthcarereform.com.   The website focuses on legal developments in the area of the recent federal health care reform.

Set out below is a chart that describes the various notices that are required under government regulations for the group health plan reforms and related requirements that will be in going into effect for plan years beginning on or after September 23, 2010 (e.g., January 1, 2011 for calendar year plans) -- including the special notice requirement for those plans that intend to continue to maintain “grandfathered” status, along with a link to any model notice/language provided by the government.

On July 19, 2010, the United States Departments of Health and Human Services, Labor and Treasury issued interim final regulations covering the mandates under the Patient Protection and Affordable Care Act, as amended (the “Health Care Reform Act”), relating to the internal and external claims review process. These requirements, which do not apply to grandfathered group health plans, substantially expand the claims review and appeals processes that group health plans must follow in administering claims. Because the new requirements apply as of the beginning of the first ...

The United States Departments of Health and Human Services, Labor, and the Treasury issued a series of regulations related to the Patient Protection and Affordable Care Act, as amended (the “Health Care Reform Act”).  The regulations provide guidance for group health plans, including new rules for preexisting conditions, annual/lifetime limits, and coverage rescissions.

The Department of Labor’s Wage and Hour Division recently issued a fact sheet explaining employers’ obligations under the break time requirement for nursing mothers found in the Patient Protection and Affordable Care Act, which amends Section 7 of the Fair Labor Standards Act (“FLSA”).

The much-publicized health care reform act contains a particular provision that has not received much media exposure, but which may require employers to take immediate action.  The 2010 Patient Protection and Affordable Care Act (“PPACA”), signed into law by President Obama on March 23, amends the Fair Labor Standards Act (“FLSA”) to require employers to provide “reasonable break time” for nursing mothers to express breast milk.

President Obama recently signed into law both the Patient Protection and Affordable Care Act (the “PPACA”) and the Health Care and Education Reconciliation Act of 2010, which amends the PPACA. These  two Acts will significantly change the health care landscape in the United States.

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Now that the House has passed a health care reform bill and the Senate is considering its own version, we are beginning to get a better picture about what might be presented to President Obama.

The Affordable Health Care for America Act (H.R. 3962) is estimated by its supporters to reduce federal budget deficits by $109 billion over the 2010-2019 period.  The bill was passed on November 7 with the support of only one Republican in the 220-215 vote.  The Senate version of the bill entitled the Patient Protection and Affordable Care Act (H.R. 3590), is estimated by its supporters to reduce the federal budget deficits by $130 billion over a ten year period.  The text of the bill takes up more than 2,000 pages.

These days, massive and often confusing legislative proposals seem to be the norm on Capitol Hill.  One bill that has generated significant debate -- and controversy -- is the House's current version of the health care bill, H.R. 3200.  Although it is vague in many respects, employers trying to predict the future can draw some conclusions now about what life under a government-run healthcare system might be like.