Moving Forward with Health Care Reform: A 2013 Perspective Southern Nevada Compensation and Benefits Association Frances K. Horn, JD, PHR National Legal & Research Group January 23, 2013 This material and any accompanying remarks are provided for informational purposes only and nothing contained in either should be taken as a legal opinion or as legal advice Copyright 2013 All rights reserved

1 Agenda Exchanges  Importance Health Insurance Subsidies  Importance Pay or Play Mandate  Issues to Consider  Safe Harbor Full-Time Employee Determination Fees  Comparative Effectiveness Research (CER)  Transitional Reinsurance Points to Consider

2 Employer HCR Timeline 2013  Health FSA salary reduction contributions capped at $2500 IRS guidance - start with 2013 plan year  Per capita fee increases to $2  Medicare Part D subsidy no longer deductible  Notice of state exchanges and premium assistance availability ( possibly delayed)  Medicare payroll tax increases to 2.35% on pay over $200k/$250k 2014  Pay or play/free-rider penalties  Individual mandate  Employer reporting to IRS re: individuals’ coverage  Automatic enrollment >200 EEs - required (enforcement delay until after 2014) 2014 (continued)  Insurance exchanges open to individuals and small employers  Wellness incentives up to 30% (50% possible for non-tobacco usage)  Employers offering exchange plan may allow pre-tax premiums  Reinsurance fee collection (through 2016)  Early retiree reinsurance program ends (ended early)  Coverage mandates  Out of pocket max - $6250/$12500 (adjusted to 2014 limits) – non-GF plans  Deductible limit $2,000/$4,000 (small group only) – non-GF plans  Guarantee Issue/Guaranteed renewability  No preexisting condition exclusion  No waiting periods > 90 days  Additional insurance reforms – non-GF plans

3 Exchanges

4 Exchange Eligibility What is an Exchange?  Arrangements through which private and non-profit insurers offer small employers and individuals the ability to purchase health insurance All individuals eligible in 2014 Only small employers eligible in 2014  Generally, an employer with 100 or less full time equivalent employees  Unsure how Nevada will define In 2017, states may allow large employers to be eligible Nevada Silver State Health Insurance Exchange approved ‒ Proposed fees charged to insurers

5 Exchange Liability Employers to provide employees notice of Exchanges by 3/2013 (more than likely delayed). Notice informs employee:  About existence of the Exchange ‒ Describes the provided services and contact information to request assistance  About premium tax credits or cost-sharing reductions through the Exchange  About possible loss of employer contributions toward the cost of employer-provided coverage  That all or portion of employer contributions to employer- provided coverage may be excludable for federal income tax purposes

6 Exchange Liability Question: Will all of an employer’s employees, regardless of the number of full time employees the employer has, be eligible to go to the exchange for a health insurance product?

7 Health Insurance Subsidies

8 Form of premium tax credits and cost-sharing assistance Citizens and legal residents in families with incomes between 100% and 400% of FPL who purchase coverage through a health insurance exchange eligible for a tax credit  400% FPL - $92,200 for a family of four in 2012 People eligible for public coverage (i.e., Medicaid) not eligible for premium assistance in exchanges  In states without expanded Medicaid coverage, people with incomes less than 100% of poverty will not be eligible for exchange subsidies, while those with incomes at or above poverty will be  NV has expanded Medicaid ‒ Cover people under the age of 65 with income less than or equal to 133% of the FPL People offered coverage through an employer not eligible for premium tax credits unless the employer plan does not have an actuarial value of at least 60% or the required employee contribution toward the cost of self-only coverage exceeds 9.5% of income

9 Tax Credit Amount of tax credit based on the premium for the second lowest cost silver plan in the exchange and area where the person is eligible to purchase coverage  Silver plan is a plan that provides the essential benefits and has an actuarial value of 70% ‒ 70% actuarial value means that on average the plan pays 70% of the cost of covered benefits for a standard population of enrollees Amount of tax credit varies with income such that the premium that a person would have to pay for the second lowest cost silver plan would not exceed a specified percentage of their income (adjusted for family size):  For example: ‒ Up to 133% FPL: 2% of income ‒ % FPL: 9.5% of income

10 Reduced Cost Sharing Available to families with incomes at or below 250% FPL Cost sharing reduced so that the plan, on average, pays a greater share of covered benefits  Amount of cost-sharing available varies with income ‒ For people with incomes between 100% and 150% FPL, the actuarial value of the plan will be increased to 94% Cost-sharing assistance limits the plan’s maximum out-of-pocket costs and for some people will also reduce other cost sharing amounts (i.e., deductibles, coinsurance or copayments)  For example, for those with incomes between 100% and 200% FPL, a 2/3 rd reduction applies

11 Pay or Play Mandate

12 Pay or Play Mandate Pay or play mandate is a two-part excise tax Each applies only to a large applicable employer (50 or more full-time employees (equivalents) in the last calendar year) First part of tax is $ for each of a large employer’s full –time employees (less the first 30) applicable to any month that-  Employer ‒ Offers no health coverage ‒ OR offers health coverage that is not minimum essential coverage (MEC) ‒ OR offers MEC to less than “substantially all “ full-time employees (and dependents after 2014) But only if the employer receives certification that a full-time employee qualified for a premium tax credit or cost-sharing reduction

13 Pay or Play Mandate Pay or play mandate is a two-part excise tax Second part of tax is $250 per full-time employee for which a large employer receives certification) applies to any month that—  Employer offers MEC to “substantially all” full-time employees and after 2014, their dependents  But the MEC either- ‒ Is not affordable (employee’s cost for self-only coverage is greater than 9.5% of employee’s household income or safe harbor alternative) ‒ OR does not provide minimum value (at least 60% actuarial value) If second part of tax would be greater than the first penalty, then the first penalty applies instead

14 Issues to Consider Under Pay or Play Mandate Who is considered an employee? Employees determined under the common law test  “leased employees” are not counted for this purpose  Partners, more than 2% shareholders in a Subchapter S, and self-employed individuals don’t count Seasonal employees may be excluded for determining if an entity is an applicable large employer (certain conditions must be met) Seasonal employees may not be excluded when determining whether a full-time employee must be provided coverage

15 Issues to Consider Under Pay or Play Mandate Who is considered an employer? IRS says that the “employer” will be all members of a controlled group  Parent-subsidiary  Brother-sister subsidiary  Combination of above  Affiliated services Employers in controlled group aggregated for determination of being an applicable large employer  Controlled group is NOT aggregated for purposes of pay and play penalty ‒ Each entity is considered separate applicable large employer member ‒ BUT, the 30 employee reduction for the penalty of not offering coverage is prorated across the controlled group ‒ BUT, hours of service for employees are counted across all employer members

16 Issues to Consider Under Pay or Play Mandate Who is considered an employer? IRS has reserved a section in the regulations for special rules for controlled groups as it relates to governmental entities Temporary staffing agencies

17 Issues to Consider Under Pay or Play Mandate What is “substantially all” employees? Coverage is offered to 95% of its full-time employees (or the greater of five persons) (and their dependents)  Need not be inadvertent This is used to avoid the $2,000 penalty If coverage does not have minimum value or is not affordable, employer still on the hook for $3,000 penalty  If any of the 5% (or the greater of five) employees who are not offered coverage receive premium assistance for coverage from the Exchange, $3,000 penalty will apply

18 Issues to Consider Under Pay and Play Mandate Employer must provide coverage to full-time employees (and dependents) Includes only an employee’s child  Son, daughter, stepson, stepdaughter, adopted child, child placed for adoption and foster child  Future guidance expected on foster child  Up to age 26 (based on day the child turns 26) Does not include spouse If employer does not currently provide dependent coverage, it is required after 2014

19 Issues to Consider Under Pay or Play Mandate How an employer satisfies the requirement to offer coverage Employee must have an effective opportunity to accept coverage at least once during the plan year  Based on facts and circumstances Employee must also have opportunity to decline If accepted by employee coverage would be applicable for that month or day  If there is a day during a month in which the coverage would not be effective, employee is treated as not being offered coverage for the entire month (unless employee is terminated) Late or nonpayment of premiums If after being enrolled in coverage employee fails to pay his/her share of premium on a timely basis employer is not required to provide coverage for that period and employer is treated as having offered coverage for the remainder of coverage period (typically plan year)  Apply COBRA rules

20 Issues to Consider Under Pay or Play Mandate Employee’s required contribution toward cost of self-only coverage is affordable if it does not exceed 9.5% of employee’s household income W-2 Safe Harbor  Self only coverage for the lowest option that provides minimum value does not exceed 9.5% of the employee’s W-2 wages for that calendar year ‒ Must offer coverage to dependents ‒ If employee not offered coverage for all months of employment during the year, W-2 wages are adjusted to reflect period of coverage/premium ‒ Employee by employee basis ‒ Employer does not know if affordability is met until end of calendar year ‒ ER can set contribution as percentage of wages

21 Issues to Consider Under Pay or Play Mandate Employee’s required contribution toward cost of self-only coverage is affordable if it does not exceed 9.5% of employee’s household income Rate of Pay Safe Harbor  Use the hourly rate of pay for each eligible hourly employee, multiply that rate by 130 and determine affordability based on the monthly wage ‒ Contribution toward lowest cost self-only coverage that provides minimum value cannot be more than 9.5% of monthly wage ‒ Safe harbor is not applicable if employer reduces wages during the year for either hourly or salaried employee Federal Poverty Line Safe Harbor  Self only cost of coverage does not exceed 9.5% of most recently published federal poverty level for a single individual

22 Issues to Consider Under Pay or Play Mandate What is a full-time employee? Employed on average for at least 30 hours of service per week or more (130 hours of service in a calendar month is considered to be 30 hours per week) ‒ Hours of service includes time for which employee is paid, or entitled to payment, for performance of duties ‒ Vacation, holiday, illness, incapacity (including disability), lay off, jury duty, military duty or leave of absence ‒ No limit to the hours that may be credited for paid leave Includes hourly, salary, commission

23 Issues to Consider Under Pay or Play Mandate Safe harbor rules for determining full-time employee status “Ongoing employee”- an employee who has been employed for at least one complete “standard measurement period”. Determined status of employee based on look back (full-time or not full-time) is applied for subsequent standard stability period. ‒ Can use an administrative period after measurement period

24 Issues to Consider Under Pay or Play Mandate Safe harbor rules for determining full-time employee status New employee- employed for less than one complete standard measurement period Divided new full time and new variable hour or seasonal each with different rules New Full-Time Employee At start date employee is reasonably expected to be employed on average 30 hours of service or more per week (and is not a seasonal employee) Cover age must be provided at or before the end of the employee’s first three months ( cannot have more than a 90 day waiting period)

25 Issues to Consider Under Pay or Play Mandate Safe harbor rules for determining full-time employee status New variable hour/seasonal employee  Cannot determine at employee’s start date if employee is expected to work on average 30 hours of service per week (assume employment for entire measurement period) ‒ Employees of educational organizations generally cannot be treated as seasonal employee  Determined status of employee based on look back (full-time or not full-time) is applied for subsequent stability period.  Initial measurement period—between 3 and 12 months that begins on any date between the employee’s start date and the first day of the first month following the start date ‒ Initial measurement period and administrative period cannot extend beyond 13 months and a fraction of a month (last day of the first calendar month beginning on or after the employee’s first anniversary date

26 Issues to Consider Under Pay or Play Mandate Other Issues of Concern Change in employment status-new variable hour/seasonal employee Rehired employees/Employees who resume service after absence  Paid or unpaid leave  Special rules for unpaid FMLA, USERRA and jury duty Continuing employee Continuing employee of educational organization Cafeteria Plans  Permitted to use gaining or losing coverage on Exchange as reason to make a mid-year election change  Plan must be amended by December 31, 2014

27 Pay or Play Effective Date Applicable to calendar plan years as of January 1, 2014 Transition Relief for Fiscal Plan Year Complex two-part transition rule for plans that had non-calendar plan years on December 27, 2012  Employees eligible on first day of 2014 plan year, per rules in effect on 12/27/2012 ‒ No penalty with respect to these employees if offered MEC that is affordable and has minimum value for 2014 plan year ‒ Does not solve any issues caused by full-time employees not being eligible under current plan terms

28 Pay or Play Effective Date Applicable to calendar plan years as of January 1, 2014 Transition Relief for Fiscal Plan Year Second part of two part-transition rule  No penalty with respect to ‒ Employees ineligible per rules in effect 12/27/2012 who are offered MEC that has minimum value for 2014 plan year ‒ IF the coverage is offered under plan(s) having the same non-calendar plan year on 12/27/2012 ‒ AND, at specified times, those plan(s) covered at least ¼ (or were offered to at least 1/3) of the employer’s employees ‒ AND the employees would not have been eligible for any group health plan of the employer that had a calendar plan year on 12/27/2012

29 Fees

30 Comparative Effectiveness Research Fee $2 per capita fee due with respect to plan/policy years ending after September 30, 2012, subject to exceptions  $1 per capita for plan/policy years ending before October 1, 2013 Based on national health expenditures for plan/policy years ending after September 30, 2014 Sunsets for plan years ending after September 30, 2019  Fee generally is required on average number of lives covered, including spouses, children, other enrollees Special rule for stand alone HRAs and health FSAs subject to fee: count only participants (employees, qualified beneficiaries, etc.) Paid on Form 720 to IRS by July 31 of the calendar year following the end of the plan year Employer pays for self-insured, insurer pays for fully insured This is not deductible by the employer

31 Transitional Reinsurance Fee 2014 to 2016 Fee imposed on insurers and self-funded plans to finance reinsurance payments for individual market coverage Assessed on a per capita basis, in 2014 fee is $63 TPAs may pay for self-insured plan Estimated that fees will total $12 billion in 2014, $8 billion in 2015 and $5 billion in 2016 Collected by HHS  Plan reports number of lives by November 15, HHS will advise amount of contribution due, payment due to HHS within 30 days States are permitted to increase fees at their discretion, but only for insured plans  Self insured ERISA plans are preempted from a state extension This fee is deductible by employer and insurers

32 Annual Fee on Health Insurance Fee imposed on health insurers  Non-deductible  Allocated proportionately across the industry according to market share  Presumably applicable to medical, dental and vision insurers ‒ Regulations not yet issued, may provide further clarification Amount of fee  $8 billion in 2014 rising to $14.3 billion by 2018  Increased after 2018 by amount paid in preceding year increased by rate of premium growth for the preceding year Not applicable to self-insured plans

33 Points to Consider

34 Points to Consider Will you pay or play? Will you pay all the way or play all the way?  Consider managing plan design and cost to sustain employer sponsored plan and to help avoid excise tax Have plans been reviewed as to meeting actuarial value of 60% bronze plan? Have the compensation of employees been reviewed to see if cost will not exceed 9.5% of employee’s gross wages?  Will wages need increased or premiums lowered? What kind of coverage will continue to be offered?  Drop spouses since not considered “dependents”  Increase cost of dependent coverage

35 Points to Consider Have you reviewed your population as to any waiving of coverage? ‒ How does this affect total premiums? ‒ Will compensation need reviewed if no longer waiving? How does the new definition of full time employee affect you?  Will employee hours be dropped and the workforce adjusted accordingly? Will low wage full-time employees be unable to access exchange because employer plans meet affordability test?  Coverage through the employer plan may be more expensive than the exchange Will employees lose pre-tax ability because of getting exchange coverage? If subsidizing employees due to exchange coverage have you considered all of the employment costs? What if decisions result in a discriminatory plan?

36 Discussion

Moving Forward with Health Care Reform: A 2013 Perspective Southern Nevada Compensation and Benefits Association Frances K. Horn, JD, PHR National Legal & Research Group January 23, 2013 This material and any accompanying remarks are provided for informational purposes only and nothing contained in either should be taken as a legal opinion or as legal advice Copyright 2013 All rights reserved