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Recent Executive and Regulatory Action Related to the Affordable Care Act

As September 2017 drew to a close, it appeared significant legislative efforts to repeal and replace the Affordable Care Act (ACA) were on hold until at least 2018 and would likely be joined by a bipartisan approach to amend and “save” the ACA. Against that backdrop, October 2017 was a busy month for both executive and regulatory action intended to loosen certain ACA requirements to allow greater flexibility to offer lower cost health insurance coverage options to consumers than is feasible under the existing ACA. Some of these actions are likely to put pressure on the long-term viability of the public insurance marketplace (e.g. Healthcare.gov and state-run insurance exchanges), potentially unraveling a key component of the ACA if not the ACA itself, which may cause Congress to act, perhaps improving the chances of repealing and replacing the law. The October actions included: Interim final regulations expanding the types of entities… Continue Reading

2017 Health and Welfare Plan Year-End Action Items

The following is a list of action health and welfare plan action items that should be addressed by plan administrators for the end of 2017 and start of the 2018 plan year. Please note that for non-calendar year plans, the specific timing requirements described below may vary. Employer shared responsibility provisions under the Affordable Care Act (ACA): Determine applicable large employer/applicable large employer member status for 2018. Determine whether any changes will be made to the measurement process for 2018 such as a change in method (e.g., monthly versus look-back), changes to period duration if the look-back measurement method is used, or other variations among permissible employee categories under the employer shared responsibility provisions. Update employer measurement policy as needed. Ensure minimum essential coverage will be offered to at least 95 percent of ACA full-time employees for each month during 2018 to avoid potential Internal Revenue Code (IRC) Section 4980H(a)… Continue Reading

Court Issues Stay on Proceedings in Challenge to ACA Section 1557 Nondiscrimination Regulations

The federal district court for the Northern District of Texas recently granted a stay on proceedings in the case of Franciscan Alliance, Inc. v. Price, pending reconsideration by HHS of the final regulations (the “Nondiscrimination Regulations”) it issued under Section 1557 of the Affordable Care Act (the “ACA”). Section 1557 of the ACA prohibits discrimination in certain healthcare programs and activities on the basis of sex and other protected traits. The Nondiscrimination Regulations specify gender identity discrimination and sexual stereotyping as forms of sex discrimination. In Franciscan Alliance, eight states and three religiously affiliated healthcare providers challenged two aspects of the Nondiscrimination Regulations. In December of 2016, the court issued a preliminary nationwide injunction enjoining HHS from “enforcing its expanded definition of sex discrimination” under the Nondiscrimination Regulations. (Please see our prior blog post discussing the court’s decision to issue the injunction and note that Sylvia Burwell was the Secretary… Continue Reading

IRS Releases Final Instructions for Forms 1094-B/1095-B and 1094-C/1095-C

IRS Releases Final Instructions for Forms 1094-B/1095-B and 1094-C/1095-C

The IRS recently released final instructions for the 2016 Forms 1094 and 1095.  Highlights of the changes and clarifications included in the final instructions are provided below. While a of the few items are “neutral” and merely reflect pre-programmed changes under the Affordable Care Act that were already known and set to occur, many of the changes and clarifications are welcome news. Form 1094-B Highlights There are no substantive changes for 2016. View the 2016 Form 1094-B here. Form 1095-B Highlights The statement, “Do not attach to your tax return. Keep for your records.” was inserted underneath the main heading, suggesting that the form will continue to not be required for direct substantiation purposes as part of a personal income tax filing in the future. Part I, Lines #2 and #3 and Part IV, columns (b) and (c) have been updated to reflect that TINs may be substituted for SSNs.… Continue Reading

ACA Section 1557 and Nondiscrimination in Health Programs and Activities

In May, we provided information about the release of final HHS regulations implementing ACA Section 1557 and their potential effects on healthcare providers, insurers, and employer-provided healthcare coverage. Chris Beinecke wrote an article discussing these implications in greater detail. A link to this article, which was recently published in the Dallas Business Journal, is available here.

ACA Nondiscrimination in Health Programs and Activities Final Regulations Released

Section 1557 of the Affordable Care Act (the “ACA”) prohibits discrimination in certain health care programs and activities on the basis of race, color, national origin, sex, age, or disability. HHS recently issued final rules under Section 1557, which specify gender identity discrimination and sexual stereotyping as forms of sex discrimination. However, these rules only apply to “covered entities” as defined for this purpose. The term “covered entity” includes health care systems or providers that accept Medicare Part A or Medicaid and insurance carriers and/or third party administrators (“TPA”) that receive federal funding through participation in the public insurance marketplace, which will also have to comply with respect to benefits offered to their own employees. While HHS interprets the rule to impact an insurance carrier’s and/or a TPA’s entire book of business, a TPA is not responsible for discrimination due to a plan sponsor’s self-insured plan design decisions beyond the… Continue Reading

Workforce Restructuring to Avoid ACA Penalties may be ERISA Violation

Dave and Busters, Inc. (“D&B”) began restructuring its workforce in 2013 to reduce the number of employees who were considered full-time under the Affordable Care Act (the “ACA”), thus minimizing D&B’s potential exposure to the employer shared responsibility payments under the ACA. Part of this well-documented reduction strategy included shifting many employees who had previously worked full-time schedules into part-time positions, which also resulted in a loss of eligibility under D&B’s group medical plans. In a class action filed against D&B, the plaintiffs maintain that D&B violated ERISA Section 510 because it engaged in unlawful discrimination against a participant or beneficiary for exercising any right to which he or she is entitled under the provisions of an employee benefit plan subject to ERISA. The defendant countered that future ineligibility for coverage alone was not enough to sustain a violation under ERISA Section 510. The U.S. District Court (S.D.N.Y.) noted that… Continue Reading

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