8 reasons for employers to keep their PPACA guard up
Forget the delays for a minute. Here's what the national law firm Bryan Cave had to say about which PPACA provisions remain in effect for employers in the year ahead.
- Summaries of Benefits and Coverage must be distributed during open enrollment for the 2014 coverage period and must indicate whether the plan provides minimum value, as defined under PPACA.
- Exchange Notices: Employers must distribute PPACA exchange notices to employees by Oct. 1, 2013, and thereafter to new employees upon hire.
- Application for Advance Premium Credits: Employers are required to complete a 12-page form, “Application for Health Coverage and Help Paying Costs,” when requested by employees who are applying for PPACA advance premium tax credits when purchasing coverage via an exchange.
- PPACA fees: Patient-Centered Outcome Research Institute Fees (“PCORI Fees”) must be paid in July 2013 (that's now!). The first transitional reinsurance fee must be paid on or before Jan. 15, 2015.
- W-2 reporting: Employers must continue to report the aggregate value of health coverage on Forms W-2.
- Counting Period for Employer Mandate: Employers that need to determine whether they will be subject to the employer mandate in 2015 (50 or more full-time or full-time equivalent employees in 2014) will need to record employee hours in 2014. It's not yet clear whether a short counting period will be available, which means that employers may be smartest to begin to track hours on a per-employee, monthly basis on Jan. 1.
- Benefit Mandates For All Plans: Plan design requirements for all plans continue to apply (e.g., maximum 90-day waiting period, no limits on pre-existing conditions or essential health benefits, expansion of wellness incentives, dependent coverage to age 26).
- Benefit Mandates for Non-Grandfathered Plans Only: Plan design requirements for non-grandfathered plans only continue to apply (e.g., preventive care coverage requirements, limits on out-of-pocket maximums, etc.)
—Dan Cook
A quiet week usually reserved for barbecues, family get-togethers and a day or two off from work turned more complicated than anyone expected when PPACA stalled out on the way to full implementation. The Obama administration announced July 2 it would delay the employer mandate penalty for one year.
One of the key provisions of the Patient Protection and Affordable Care Act requires employers with 50 or more employees to provide health coverage or pay steep fines. But the Treasury Department announced in a blog post that penalties will be on hold until 2015 due to alleged concerns from employers over the challenges of its implementation.
“We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively,” Mark J. Mazur, assistant secretary for tax policy, wrote in a blog post on the Treasury Department's website.
“We recognize that the vast majority of businesses that will need to do this reporting already provide health insurance to their workers, and we want to make sure it is easy for others to do so. We have listened to your feedback. And we are taking action.”
Just days later, the administration even more quietly released a 606-page rule that spelled out other delays, including pushing back until 2015 the law's requirement that the new exchanges verify consumers' income and health insurance status, when stronger verification systems are in place. In the meantime, the government will rely on consumers' self-reported information.
Made without fanfare, the announcements stunned and confused a wide variety of stakeholders.
Here's what it all means.
For employers
For the most part, business groups welcomed the news that the administration had delayed the penalty.
Randy Johnson, senior vice president of the U.S. Chamber of Commerce, called it “a pleasant surprise,” adding that the Chamber has testified several times about the problems with the mandate.
The National Retail Foundation, a constant PPACA critic, said the delay is a “wise move.”
“This one-year delay will provide employers and businesses more time to update their health care coverage without threat of arbitrary punishment,” NRF vice president and employee benefits counsel Neil Trautwein said.
The American Benefits Council also applauded the move, saying it provides “vital breathing room to implement the law in a more thoughtful and administrable way.” The advocacy group for employer-sponsored benefit programs said it had been working closely with the Obama administration to “mitigate wherever possible the cost and burdens of implementing the ACA.”
Although the requirement applies to only 3 percent of the nation's employers—the vast majority of whom already provide insurance—the rule is still seen as burdensome and confusing.
PPACA requires employers with more than 50 full-time workers to provide health insurance or pay steep fines. Various studies and employer polls found that numerous companies would lay off employees or cut their hours to dodge the mandate.
Now, there's the potential that some employers may unfreeze their hiring plans without worrying about the consequences. That's one piece of good news, employers say.
But for others, the delays raise more questions.
Employers who already had made efforts to comply with the rules are now confused or frustrated. For others, the delays don't matter or change their plans because the companies were already prepared.
Though there's more time to adjust, employers need to understand the delays don't give them a “free pass,” explains Julio Portalatin, president and CEO of consulting firm Mercer.
“We expect employers to stay 100 percent focused on cost management,” he says.
In the short term, Mercer estimates, new fees, plan design changes and the expectation of additional enrollment will add an estimated 2 percent to 3 percent or more to health plan costs in 2014, even if employers table plans to extend coverage to all employees working 30 or more hours per week.
Still, employers can take advantage of the move and spend the time shopping around for the best and most cost-effective plans.
The bottom line? Employers have more time to prepare for the inevitable.
For brokers
The delays give brokers a more important role than ever, industry insiders say.
Shortly after the administration's announcement, Janet Trautwein, CEO of the National Association of Health Underwriters, encouraged employer groups to “seek counsel from an experienced, licensed health insurance agent” for questions, concerns and advice.
“These professionals can help employers prepare for the new 2015 deadline, as well as assist in finding affordable plans that fit the needs of employees and their families,” she said.
David Smith, vice president of health and welfare benefits at North Carolina-based Ebenconcepts, says that though the PPACA delays are keeping brokers and agents on their toes, it's an exciting time to be in business.
Successful agents and brokers, he says, need to keep abreast of the changes and inform clients about the law's ongoing implementation.
Smith, for one, says he informed his clients of the changes immediately.
Overall, the delays should give brokers and agents a chance to play catch-up, says Digital Insurance President and CEO Adam Bruckman.
“We've been working diligently for several years in preparation for [PPACA's] numerous provisions, and we'll continue along these same lines,” he says. “More time is always welcome news and provides some relief for those affected by it most.”
For other brokers, the delays confirm suspicions about PPACA and its implementation.
Brandon Scarborough, co-founder of Power Group worksite division and PowerEnroll at Power Group Cos. in Overland Park, Kan., says the delays are “significant.”
“It begs the question: What might be next in terms of delayed implementation?”
“If taken at face value, it's surprising this is where the administration sees the greatest need for 'simplification,'” he says. “The construction and integration of the federal data hub and exchange marketplaces seem far more precarious at this point. The pay-or-play rules, controversial or not, have been pretty clearly defined.”
For insurers
America's Health Insurance Plans, the nation's largest carrier group, has long warned that PPACA is harmful and burdensome to health insurers.
Robert Zirkelbach, an AHIP spokesman, said shortly after the announcement that AHIP is appreciative of the administration's response to employer and insurer concerns.
But some experts warn that the PPACA delays actually might hurt insurers.
Steve Zaharuk, a senior vice president at Moody's Investors Service, warned about the possible effects of the changes in a recent credit outlook commentary.
Though the changes could increase individual health policy sales—with more individuals shopping for coverage through the exchanges—insurers might have a problem because they've priced their products based on the assumption that PPACA will be fully implemented.
If the government puts off implementing some parts of PPACA, the actual demographics of individual market coverage applicants could be different from what insurers had expected, Zaharuk says.
“Obviously, a less healthy population would result in higher-than-anticipated medical costs,” Zaharuk writes. “This risk is likely, as we expect there will be individuals who use this opportunity to obtain subsidized insurance in 2014 for elective procedures, driving up medical costs.”
The insurers that bring in those costlier-than-expected enrollees could face higher customer-service staffing costs, as well as higher-than-expected medical costs.
Meanwhile, some individuals who buy individual exchange coverage as a result of the temporary implementation changes could drop their coverage in 2015, when the temporary changes end, Zaharuk says.
For insurers, the possibility that many new individual policy customers could rush out the doors in 2015 will make pricing and staffing difficult.
If exchanges and state regulators let health insurers change their 2014 rates to compensate for the new regulatory uncertainty, that “would somewhat mitigate the negative implications,” Zaharuk writes.
For consumers
For some employees, the delays mean they may be turning to the exchanges to buy health insurance when they may not have previously planned to do so. And the impact on their pocketbooks is unclear.
The original intent of the employer mandate—proponents have said—is that it's a “firewall” to prevent employers from dumping their low-income employees onto the exchanges, where they would be eligible for substantial subsidies at taxpayer expense. But that firewall is now dismantled with the delays.
Health Partners America, a leading brokerage training firm in Birmingham, Ala., warns the delay will cause more employers to drop their group health insurance and send their workers to the individual market to find coverage.
The reporting delay also means that for a year, consumers will be on the honor system for subsidies under the Patient Protection and Affordable Care Act.
Anyone willing to claim eligibility will be able to obtain exchange coverage and (in the case of about two-thirds of households) the premium subsidies that go with it.
Consumers, experts warn, could easily take advantage of the new lax reporting to get cheaper coverage.
These are big consequences.
But perhaps the biggest implication of the law's delays on consumers will be furthering confusion.
The majority of Americans don't understand how the law works or when it takes effect, and the continued delays might only muddle the issue further.
For the government
Though the administration has claimed the delays are a result of “careful and thoughtful consideration,” others argue they're largely a political move—to wait under after the midterm elections. The delays also have raised many eyebrows among political pundits and benefits experts alike.
The Obama administration insists that despite the delays, the rest of the law will keep rolling along. Among the promises is that the exchanges—the central piece of PPACA—will open up on time Oct. 1. That's an important milestone, and one many are watching.
But it's not a given: A Government Accountability Office report discovered Obamacare exchanges are behind schedule, underscoring the challenges the administration has in the coming months.
The delays have given Republicans and other critics more ammo to continue their attacks against PPACA.
Senate Minority Leader Mitch McConnell said the delay confirms that “Obamacare costs too much and it isn't working the way the administration promised.”
Critics are continuing their crusade against PPACA in its entirety. Some are now arguing that the employer mandate should not just be delayed; it should be repealed. And others are focusing their efforts on delaying the individual mandate.
The employer mandate delay is the biggest delay of the law yet, but it wasn't the first.
Earlier this year, the administration delayed by one year its Small Business Health Options Program, a move that many small business owners called a “major letdown” for their employees looking for a competitive marketplace for health insurance options.
The latest delays also mean more might be coming, analysts and other industry insiders warn.
“I expect to see more delays and missed deadlines,” says Troy Underwood, president and CEO of Benefits Connect, adding that he was not at all surprised by the recent delays. “Platitudes, political favors and hope never replace a solid and realistic plan. As an expert in the processing and administration of employee benefits, I can tell you the government's efforts, even if well intentioned, are grossly inefficient.”
Smoker penalties delayed, too
A computer system glitch is the cause of the latest PPACA delay. And it's giving smokers a break.
The glitch could limit penalties under the law for most smokers—but at the same time raise insurance costs for younger tobacco users.
Under PPACA, insurers are prohibited from denying insurance to those with a preexisting condition. But they are allowed to charge more based on age and tobacco use. They can charge a smoker a surcharge of up to 50 percent.
But the new computer mistake is sparing them.
Until at least 2015, the software won't accept any plans that charge one person more than three times what another person is charged.
Industry insiders say the delay will either cause insurers to charge older smokers and younger smokers the same penalty. That means either older smokers will get a temporary break, or younger smokers will pay more than they would have.
The Department of Health and Human Services assured it's “a temporary circumstance that in no way impacts our ability to open the [subsidized insurance] marketplaces on Oct. 1.”
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