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HealthCare Reform Post-Election: A Church Alliance Update. Church Benefits Association Annual Meeting Jean Hemphill – Ballard Spahr LLP Andy Hendren – The United Methodist Church November 28, 2012. Agenda. Upcoming Provisions –Review and Update 2014 Market Reforms

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HealthCare Reform Post-Election:

A Church Alliance Update

Church Benefits Association Annual Meeting

Jean Hemphill – Ballard Spahr LLP

Andy Hendren – The United Methodist Church

November 28, 2012

  • Upcoming Provisions –Review and Update
  • 2014 Market Reforms
    • Review of Main Provisions
    • Implementation Uncertainty
    • Recent Guidance (November 2012)
affordable care act aca
Affordable Care Act (ACA)
  • Patient Protection and Affordable Care Act (PPACA or ACA)—March 23, 2010
    • Incremental changes: 2010-2013
    • Major reforms: 2014
  • Supreme Court upholds ACA in NFIB v. Sebelius—June 28, 2012
  • 2012 election outcome minimizes political uncertainty
  • Implementation uncertainty remains
aca near term provisions
ACA Near-Term Provisions

1 Initially in Fall 2012 annual enrollment materials

2 Fees apply to self-insured plans

summary of benefits and coverage sbc
Summary of Benefits and Coverage (SBC)
  • Plan must provide an SBC for each plan option to each plan member beginning 9/23/2012
    • Calendar year plans: January 1, 2013
      • Annual Enrollment—fall 2012
  • Upon initial enrollment, at renewal (at least 30 days prior) and upon request (within 7 days)
  • Must use HHS uniform template and include specific content and examples, in specified order and format
sbc final rule
SBC Final Rule
  • 4 pages: benefits, cost-sharing, exclusions
  • “Good faith reasonable best efforts”
    • Penalties unlikely first few years
  • Plan, employer, insurer orTPA
  • 60 days advance notice of plan changes
  • Penalty for failure: $1,000 per incident
  • Final Rule:
sbc rule
SBC Rule

Language Access Requirements

  • Must provide translated form in HHS designated counties
  • Navajo, Spanish, Chinese & Tagalog templates and glossary are available
  • Non-English language services must be made available
fsa limit
FSA Limit

Notice 2012-40: $2,500 limit on employee contributions to health flexible spending accounts (FSAs)

  • Effective for plan years beginning after December 31, 2012
  • Final Rule:
  • If in compliance, may amend plan as late as December 31, 2014
notice of exchanges
Notice of Exchanges
  • March 1, 2013
    • employers will be required to provide their employees with notice about the availability of the exchanges.
      • Fair Labor Standards Act (FLSA) amendment – applies to employers
  • No guidance yet on Notice form or content
    • Guidance/template Notice expected soon
effectiveness research fee
Effectiveness Research Fee

Comparative effectiveness research fee to fund Patient-Centered Outcomes Research Institute (PCORI)

  • Applies to insured self-funded plans
  • Applies to plan years ending after October 1, 2012 and before October 1, 2019
  • $2.00 per covered life ($1.00 in first year)
  • Information Return (Form 720) and payment due by July 31 of following year
pcori fee
  • Applies to retiree plans; not to excepted benefits (e.g., vision, dental, EAP)
  • Plan sponsors may aggregate self-funded plans (if same plan year) to pay one Fee
    • If plan sponsor maintains self-funded and full-insured plans, Fee will apply to both
  • PCORI Proposed Regulations
quality of care reporting
Quality of Care Reporting
  • Health plans will be required to report on measures they have taken to plan design to improve health outcomes, prevent medical errors, improve patient safety and health promotion activities.
  • No guidance yet (due 3/23/2012) on reporting requirements
preventive care rule
Preventive Care Rule
  • Plan must cover preventive services with no cost-sharing
    • Including women’s preventive services
    • Effective plan years on or after August 1, 2012, plans must provide contraceptive services to women without cost-sharing
      • Regulations exempt certain “religious employers” from this requirement
preventive care rule1
Preventive Care Rule

“Religious employer” for purposes of exemption must:

  • have the inculcation of religious values as its purpose
  • primarily employ persons who share its religious tenets
  • primarily serve persons who share its religious tenets
  • be a church or integrated auxiliary of a church

Note: There is no explicit exemption for a church

preventive care rule2
Preventive Care Rule

Temporary Enforcement Safe Harbor

One year delay in effective date of rule for “religious organizations” not entitled to the exemption. “Religious organization” must meet all of following:

  • Must be non-profit entity
  • From 2/10/2012 onward, must not have provided some or all of the contraceptive coverage otherwise required at any time because of religious beliefs of organization;
  • Must provide notice to participants
  • Must self-certify the above requirements
preventive care rule3
Preventive Care Rule
  • Advanced notice of proposed rulemaking issued March 2012
    • New regulations expected soon
  • Many lawsuits filed challenging the religious conscience exemption
    • Many dismissed on ripeness/standing
    • Several preliminary injunctions issued (mainly private employers)
non discrimination rule
Non-discrimination Rule
  • Section 105(h)
    • Has long applied to self-funded plans
    • ACA made applicable to insured plans
  • Highly compensated employee (HCE) defined differently than in IRC 414(q):
    • 5 highest paid officers
    • Highest paid 25 percent of all employees (including the 5 highest paid officers)
non discrimination rule1
Non-discrimination Rule
  • Penalties for non-compliance different
    • Self-funded = benefits of HCE are taxable
    • Insured = an excise tax ($100/day per HCE), civil money penalty, or a civil action to compel it to provide nondiscriminatory benefits
  • Enforcement of Section 105(h) currently on hold pending further guidance
wellness program expansion
Wellness Program Expansion
  • New Guidance expands HIPAA’s bone fide wellness program exception to prohibition on varying benefits based on health status
  • Similar to 2006 Guidance but with expanded rewards from 20% to 30% of the value of ER + EE contributions.
changes ahead
Changes Ahead

1 Applies to self-insured plans

2 Earliest possible: January 2014 Form W-2 for 2013 tax year (self-insured church plans and small employer) under Notice 2011-28



  • Exchanges, subsidies and market reforms
  • Risk-adjustment fees1for exchanges
  • Report health coverage value on Form W-22

Exchanges for large employers (100+)


Cadillac plan tax


Large employer (200+) auto-enrollment

transitional reinsurance program
Transitional Reinsurance Program
  • Three year assessment (2014-2016) to fund reinsurance programs for state and federally-facilitated exchanges
  • Applies to all insured and self-funded group health plans (either directly or through their TPAs)
  • To be based on a percentage of aggregate premiums and self-insured plan "premiums equivalents "  
  • No regulations yet but industry rumors are ($60 to $100 per covered life)
    • .95% for 2014,
    • .60% for 2015
    • .35% for 2016.    
reinsurance program
Reinsurance Program
  • Final Regulations:
w 2 reporting
W-2 Reporting

Beginning with W-2 for 2012 tax year (January 2013), most employers must annually report the aggregate cost of employer-sponsored health coverage provided to each employee

    • Form W-2
    • Box 12
    • Code DD
  • Amount determined on basis of COBRA rules.
w 2 reporting1
W-2 Reporting
  • Excepted Plans/Employers (not exhaustive)                            
    • Self-insured church plans (not subject to COBRA)
    • Small employer exemption: employers who furnish fewer than 250 W-2 forms for calendar year are exempt
    • HSAs and Archer MSAs  
    • Health FSAs (salary reduction contributions only)
    • HRAs                                                              
    • Stand-alone dental and vision plans                 
    • Long term care plans
    • Multiemployer plans (Taft-Hartley Union plans)
    • Governmental plans for military personnel
w 2 reporting2
W-2 Reporting
  • IRS Notice 2012-9 (restating and clarifying IRS Notice 2011-28)
auto enrollment
  • Large employers (200 or more full-time employees) will be required to enroll each new full-time employee automatically in one of its plans.
  • Technical Release 2012-01 indicated delay until 2015 and further guidance forthcoming by 2014.
2014 near universal coverage
2014: Near-Universal Coverage
  • Individual Mandate
    • Individual insurance market reforms
  • Health Insurance Exchanges
    • Government assistance for modest income →premium tax credits (PTCs)
  • Employer Shared Responsibility
    • “Pay or play” or employer mandate
  • Expanded Medicaid
medicaid expansion
Medicaid Expansion
  • ACA expands traditional Medicaid to cover all individuals at or above 133% of federal poverty level (FPL)
    • Traditional Medicaid varies by state
  • Expansion intended to cover most Americans below the PTC threshold (100% FPL)
  • Supreme Court ruling: Penalty on states for refusing to expand Medicaid “overly coercive”
    • Result: States can refuse Medicaid expansion
medicaid expansion gap
Medicaid Expansion Gap

States that opt-out of Medicaid expansion → risk of gap in ACA’s universal coverage goal

mandate and market reforms
Mandate and Market Reforms
  • “Minimum essential coverage” (MEC) or pay excise tax
    • 2014: Greater of $95 or 1% of income
    • 2015: Greater of $325 or 2% of income
    • 2016: Greater of $695 or 2.5% of income
    • Indexed after 2016
  • Does not apply to those with income below $9,350 (single) or $18,700 (married, filing jointly)
mandate and market reforms1
Mandate and Market Reforms
  • Guaranteed Issue: Insurers cannot deny or cancel coverage due to health condition or pre-existing conditions
  • Community-rating: Oldest, sickest covered person cannot be charged more than three times the premium for youngest, healthiest covered person
market reforms 2014
Market Reforms 2014
  • New Guidance November 20, 2012
  • Competitive, regulated marketplaces for individuals and small employers (through SHOP Exchanges) to obtain health insurance
  • 3 Options
    • State Exchange
    • Federally-Facilitated Exchange
      • Legal challenges to validity of employer penalty and PTCs for federal exchanges
    • Partnership Exchange
Status of State Exchanges

November 20, 2012

health insurance exchanges
Health Insurance Exchanges
  • State-based (or regional) single risk pool
  • Only “insurance companies” may offer coverage
  • HHS Final Exchange Rule: suggests future guidancemay cover church plans
  • Church Alliance effort →allow church plans(October 31, 2011 comment letter)
    • Follow-up meeting with HHS October 2012
health insurance exchanges1
Health Insurance Exchanges
  • Market reforms: guaranteed issue, no pre-existing condition denials
  • Premium rate variation limits
    • Age: 3:1; Tobacco use: 1.5:1; Family size; Geography
  • Essential Health Benefits
  • Actuarial Value of Qualified Health Plans or QHPs
    • Platinum: 90%
    • Gold: 80%
    • Silver: 70%
    • Bronze: 60%
essential health benefits
Essential Health Benefits
  • New guidance on Essential Health Benefits and Actuarial Value of Exchange Plans
  • EHB Benchmark Plan – 3 State Options
    • Largest plan by enrollment in small group market* (default)
    • Top 3 state employee health benefit plan
    • Top 3 FEHBP options
actuarial value
Actuarial Value

Second-lowest cost silver plan used to determine any government PTCs through the exchanges

who can access exchanges
Who Can Access Exchanges?
  • U.S. citizens and legal residents (not incarcerated)
  • Small employers1 (<100 employees)
  • Large employers1 (100+ employees)
    • After 2017
    • At state discretion

1 Employees of employers adopting exchange plans as group plans are not PTC-eligible.

who qualifies for ptcs
Who Qualifies for PTCs?

Individuals purchasing a qualified health plan (QHP) on a State or federally-facilitated exchange who:

  • Have household income* between 100% of FPL and 400% of FPL
  • Household Income = modified adjusted gross income (MAGI)
  • MAGI excludes housing/parsonage
  • MAGI is defined under Code §36B as a taxpayer’s adjusted gross income (AGI) as defined under Code §62, increased by three components:
    • (1) any amount excluded from gross income under Code §911 (i.e., foreign earned income);
    • (2) any amount of tax-exempt interest received or accrued by the taxpayer during the tax year; and
    • (3) the amount of the taxpayer’s Social Security benefits that are excluded from gross income under Code §86 for the tax year.
  • In general, AGI can be found on the last line (line 37) of Page 1 of taxpayers’ Form 1040.
who is excluded from ptcs
Who is Excluded from PTCs?


  • Covered by Medicare or Medicaid
  • Covered by other government coverage, e.g., CHIP, TRICARE, VA, etc.
  • Offered an affordable employer plan that covers minimum value
  • Enrolled in an employer plan (even if not an “affordable” plan)
  • Married filing taxes separately
  • MAGI > 400% FPL
  • MAGI <100% FPL (Medicaid)
minimum value
Minimum Value

Employer plan must pay 60% of total costs of plan (actuarial determination)

  • IRS Notice 2012-40

Employees whose employer plan does not cover minimum value can opt out andseek PTCs for exchange coverage.

affordable coverage
‘Affordable’ Coverage
  • Employee’s required contribution (share of premium) for participant-only (single) coverage under employer plan cannot exceed9.5% of household income* (MAGI)
    • Safe harbor (Notice 2012-58): Employer may use W-2 compensation—only for purposes of employer mandate
    • If employee contribution exceeds 9.5% of household income, employee can opt out; choose exchange coverage and PTC
  • Uncertainty remains: rule for dependent coverage

* Employers often have no information about employees’ household income

premium tax credits
Premium Tax Credits
  • Premium Assistance Tax Credits Final Rule:
premium tax credits1
Premium Tax Credits
  • Households* with MAGI 100-400% of FPL receive PTC to purchase exchange coverage

* PTCs not available to employees of plan sponsors adopting exchange plans (SHOP Exchange) as employers

premium tax credits2
Premium Tax Credits
  • Premium paid by individual/household limited to 2% to 9.5% (“applicable percentage”) of household income
    • Regardless of actual total premium for exchange plan coverage
  • Subsidies are a “premium tax credit”
ptcs are unique
PTCs are Unique
  • Refundable if exceeds federal income taxes
    • Timing/cash flow issue for those needing the assistance
  • Advanceable during tax year (up to 16 months before tax return is filed)
  • Assignable—payable directly to health insurance company or exchange plan
  • Advanced PTC payments received during a tax year must be reconciled with PTC for which an individual actually qualifies when filing tax return
  • Individuals receiving PTCs must file income tax returns
  • Based on tax return, individual’s qualificationfor actual PTC may be lower than advancedPTC received  overpaid PTC must be repaid with tax return
  • Repayment limited for those under 400% FPL

Individual must repay overpaid PTCs to IRS.

employer mandate
Employer Mandate

50+ employees

  • Employer must provide “affordable coverage”with “minimum value”
    • Or pay penalty

Should not apply to most churches

employer mandate1
Employer Mandate
  • “Large employer” for penalty purposes: averages 50+ full-time equivalent employees
    • Full-time =30 hours per week
    • Full-time equivalents (i.e., aggregated part-timers)are counted to determine whether employer is subject to the penalty
  • Controlled group rules Code §414(c) apply
    • Uncertainty for churches under current law
employer penalty
Employer Penalty
  • If employer offers no coverage and at least one FTE qualifies for PTC
    • Penalty: $2,000 per FTE (excluding the first 30 FTEs)
  • If employer offers coverage and at least one (even if only one) FTE qualifies for a PTC
    • Penalty: $3,000 per FTE receiving a PTC (limited to “no coverage” penalty)
  • Penalties adjusted for inflation after 2014

Part-time employees (PTEs) count toward determining applicability of penalty—but not penalty accrued

Are you a large employer?

at least 50 FT equivalent workers

Including FT (30+ hours/week) and PT workers (prorated)

Excluding seasonal workers (up to 120 days per year)



Are any of your FT employees receiving PTC for exchange coverage?





Do you have more than 30 FT employees?



Do you provide health insurance?

Pay monthly penalty

1/12 x $2,000 x (number of FT employees – 30)



Pay monthly penalty, lesser of:

1/12 x $3,000 x (number of FT employees receiving credits for exchange coverage)

1/12 x $2,000 x (number of FT employees – 30)

counting employees
Counting Employees
  • Variable hour and seasonal employees
  • 90-day waiting period exclusion
various employer options
Various Employer Options
  • Continue Coverage
    • Provide affordable employer plan and avoid penalty
  • Rely on Exchanges
    • Terminate plan
    • Pay applicable penalty (none for small employer)
    • Employees to exchanges
  • Middle Road
    • Increase contribution for self-only coverage >9.5% of income
    • Pay smaller penalty for some employeeswho seek exchange coverage with PTCs
church alliance efforts
Church Alliance Efforts
  • Regulatory
    • Meetings with HHS
    • Public Comment Letter to Exchange Regulations
      • Urging Church Plan inclusion in “closed exchange” or deemed PTC-eligibility for church plan participants
    • Submitted plan and demographic data regarding impact of PTCs
church alliance efforts1
Church Alliance Efforts
  • Legislative
    • Proposed bill to amend ACA
      • Makes PTCs available to participants in “qualified church plans”
      • Church plans meets certain standards to become “qualified church plans”
    • Prospects may be improved post-election (now that ACA is here to stay)
church alliance efforts2
Church Alliance Efforts
  • Special Issues
    • Preventive services (contraceptives) rule
      • Regulatory effort to expand exemption
        • Meetings with HHS & Public Comment Letters
    • Tax exclusion of employer contributions
      • Clarification (no double-dipping) in either venue of relief (regulatory or legislative)
    • Controlled group rules (Code §414(c))
      • Proposed pension/tax bill S.3532