By Michelle Capezza

Employers with fifty or more full-time employees (including full-time equivalent employees) are subject to the employer mandate penalties under the Patient Protection and Affordable Care Act of 2010, as amended  (the “ACA”) which become effective in 2014.  These penalties can be triggered if such employers fail to offer a health plan to their full-time employees and their dependents and have at least one full time employee who receives a premium tax credit or cost share reduction in connection with their enrollment in a qualified health plan through an Exchange.  These penalties can also be triggered if such employers offer coverage to 95% or more of their full-time employees and their dependents that either fails to offer minimum value (i.e., the plan’s share of the total allowed costs of benefits provided under the plan is less than 60% of the costs)  or offers coverage that is unaffordable (i.e., an employee’s cost of self-only coverage exceeds 9.5% of the taxpayer’s household income) and at least one full time employee receives a premium tax credit or cost share reduction in connection with their enrollment in a qualified health plan through an Exchange.

On May 3, 2013, the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) issued proposed regulations to provide assistance in determining whether health coverage under an employer-sponsored plan provides minimum value, as well as other rules regarding the health insurance premium tax credit (the “Proposed Regulations”).  Individuals generally may not receive a premium tax credit in connection with the enrollment in a qualified health plan through an Exchange if they are eligible for affordable coverage under an employer-sponsored plan that provides minimum value.  Under regulations issued by the Department of Health and Human Services (“HHS”) on February 25, 2013, there are several options for determining minimum value which include: (i) use of a Minimum Value Calculator; (ii) use of a safe harbor established by HHS and IRS; (iii) for plans with nonstandard features that are incompatible with the MV Calculator or a safe harbor, minimum value can be determined through an actuarial certification from a member of the American Academy of Actuaries; and (iv) a plan in the small group market can satisfy minimum value if it meets the requirements of any of the levels of metal coverage for a qualified health plan in an Exchange (i.e., bronze, silver, gold or platinum). The Proposed Regulations provide that employers must use the Minimum Value Calculator to measure standard plan features (unless a safe harbor applies) but the percentage may be adjusted based on an actuarial analysis of plan features that are outside the parameters of the calculator.  Plan designs meeting certain specifications were also proposed as safe harbors for determining minimum value.

In addition, the Proposed Regulations clarify that with regard to the health benefits considered in determining the minimum value, minimum value is based on the anticipated spending for a standard population and that the plan’s anticipated spending for benefits provided under any particular essential health benefits benchmark plan for any State counts towards minimum value.  Further, under the Proposed Regulations, all amounts contributed by an employer for the current plan year to a health savings account (“HSA”) are taken into account in determining the plan’s share of costs for purposes of minimum value and are treated as amounts available for first dollar coverage.  Amounts newly made available under a health reimbursement arrangement (“HRA”) that is integrated with an eligible employer plan for the current plan year count for purposes of minimum value in the same manner if the amounts may be used only for cost-sharing and may not be used to pay insurance premiums.  Importantly, the Proposed Regulations provide that a plan’s share of costs for minimum value purposes is determined without regard to reduced cost-sharing available under a nondiscriminatory wellness program; however, for programs designed to prevent or reduce tobacco use, the minimum value may be calculated assuming that every eligible individual satisfies the terms of the tobacco prevention/reduction program.   With respect to affordability, for plans that charge a higher premium for tobacco users, the affordability will also be determined based on the premium that is charged to non-tobacco users or tobacco users who complete the related wellness program such as attending smoking cessation classes.  Under a transition rule for plan years commencing before January 1, 2015, if an employee is eligible for a wellness program and incentives as in effect as of May 3, 2013,  then an employer offering health coverage will not be subject to an employer mandate penalty with respect to an employee who received a premium tax credit in connection with coverage in an Exchange because the employer’s offer of coverage was not affordable or did not satisfy minimum value if such coverage would have been affordable or satisfied minimum value based on the total required employee premium and cost-sharing for that group health plan that would have applied to the employee if  he or she met the requirements of the wellness program.

These Proposed Regulations are proposed to apply for taxable years ending after December 31, 2013 and may be applied for taxable years ending before January 1, 2015.  Treasury and the IRS request comments on all aspects of the proposed rules by July 2, 2013.

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