Compliance – ACA & Other

Employee Benefit Advisors blogged Oct 9, 2013 and July 7, 2014 about court cases that had been falling under the radar. EBA said “These cases could dismantle health care reform as we know it.”

Friday, Nov 7, 2014, the Supreme Court announced that they will take up the challenges to whether subsidies should be available to consumers in federally facilitated marketplace (FFM) states. The case argument is that the statute, which states that subsidies are only to be made available in exchanges “established by states,” prohibits consumers in FFM and partnership states from being able to access subsidies, as the federal government is overseeing any non-state-based exchange.

With the basis of both the employer and individual mandates on the line, and therefore, the primary enforcement mechanisms of the healthcare reform law, this case has significant potential to destabilize healthcare reform. A ruling by the Supreme Court striking down subsidies in federal exchanges could have far-reaching effects to the entire health reform structure. If consumers are unable to purchase affordable coverage without subsidies they would not be compelled by or subject to the individual mandate to purchase coverage, and if employees are unable to obtain subsidized coverage through the marketplace then employers would not be subjected to the employer mandate, as the employer mandate is only triggered when a large employer does not offer affordable coverage and an employee receives subsidized coverage, and therefore may drop coverage altogether in states using the federal exchange.

Humpty Dumpty sat on a wall,
Humpty Dumpty had a great fall;
All the King’s horses, and all the King’s men
Cannot put Humpty Dumpty together again.

…so apropos

Thanks to the National Association of Health Underwriters for providing the substance of the blog.

For plan years beginning in 2015, employers may require an employee to satisfy a one-month orientation/evaluation period in addition to a 90 day waiting period before he or she becomes eligible for benefits. The orientation period must be a reasonable and bonafide employment-based condition of eligibility in a position that is otherwise eligible for coverage and not a deliberate attempt to avoid the 90-day maximum waiting period. This period must be used for the employee and the employer to evaluate each other and to engage in orientation and training. This applies to grandfathered and non-grandfathered plans alike, as well as to self-insured and insured plans. 

The orientation period starts on the employee’s start date, and all calendar days count, including weekends and holidays.  One month is determined by adding one calendar month to the employee’s start date and subtracting one day. For example, if an employee starts working on May 3, the last permitted day of the orientation period is June 2.  Special rules apply if there is not a corresponding date in the next calendar month.

While an employee could conceivably be on the payroll for 120 days before becoming eligible for benefits, the maximum waiting period is still considered to be 90 days, because it does not begin until the day following completion of the orientation period.

Large employers should be aware that utilizing a one-month orientation period and a 90-day waiting period could cause them to be in violation of the employer play-or-pay mandate. The play-or pay mandate requires an employee to be covered by the first day of the fourth full calendar month of employment. For example, an employee who starts work on January 6 must be covered by May 1. If the employer starts coverage on May 6–one month plus 90 days after the date of hire–it would be in compliance with the 90 day requirement, but in violation of the play-or-pay mandate.

Information provided by ErisaPros.

The Washington Times is reporting  that a new study of insurance policies before and after the implementation of the Affordable Care Act “shows that average premiums have skyrocketed, for some groups by as much as 78 percent.” Average premiums for the 23-year-old demographic rose “dramatically,” with men in that age group seeing a 78.2 percent price increase before government subsidies, and women seeing premiums rise 44.9 percent, according to a report by HealthPocket to be released Wednesday. The study, shared Tuesday with the Times, also found that premium increases for 30-year-olds increased 73.4 percent for men and 35.1 percent for women.

The article says that reasons for the premium increases include the ACA’s “prohibition on rejecting applicants with pre-existing conditions” and the heightened benefit mandate under the law.

Thanks to the NAHU Newswire for forwarding the information from the Washington Times.

The IRS announced two new situations in which a participant may revoke his or her cafeteria plan election in order to purchase coverage through a marketplace (Exchange) established under the ACA.  These provisions do not apply to FSAs.  Change is permitted provided:

Employee Enrolls in Marketplace Coverage

1. The employee is eligible for a special enrollment period during the Marketplace’s annual open enrollment period; and
2. The employee enrolls in Marketplace coverage, effective immediately following the last day of the employer’s coverage.

Reduction in Hours of Service

1. The employee changes from full-time status to part-time status (i.e., reasonably expected to average less than 30 hours per week), even if the reduction in hours does not result in the employee ceasing to be eligible under the group health plan; and
2. The employee enrolls in another plan that provides MEC, effective no later than the first day of the second month following the month the original coverage is terminated.

Cafeteria plans must be amended to provide for the new permitted election changes in accordance with the guidance under Notice 2014-55.

Interim Final Rules related to the coverage of preventive services under the Patient Protection and Affordable Care Act (PPACA) were recently published. A complete list of required preventive services is available from the U.S. Department of Health and Human Services. The following is a partial listing of preventive services required to be covered under Health Care Reform.

For Adults
Blood pressure screening
Cholesterol screening for adults of certain ages or at higher risk
Colon cancer screening for adults over 50
Immunization vaccines (doses, recommended ages, and recommended populations vary)
Obesity and tobacco use screening
Type 2 diabetes screening for adults with high blood pressure

For Children
Autism screening for children at certain ages
Blood pressure screening
Alcohol and drug use assessment for adolescents
Developmental screening for children under age 3
Immunization vaccines from birth to age 18 (doses, recommended ages, and recommended populations vary)
Lead screening for children at risk of exposure
Obesity screening and counseling

Note:
The requirements to cover recommended preventive services without cost-sharing do not apply to grandfathered plans.
Coverage of preventive services does not disqualify High Deductible Health Plans HSA qualifying status.

Employee’s eligible for Cobra can opt for “Marketplace coverage” instead of COBRA.

Employees and their families eligible for, but not enrolled in, COBRA continuation insurance are able to enroll in Marketplace coverage outside of the normal open enrollment period, in most cases. It’s very possible employees eligible for COBRA continuation coverage could save on their monthly health insurance premiums by purchasing health insurance through the Marketplace. (Most employers offer a two or three plan choices with one carrier while the Marketplace makes all options, insurance carriers and plan designs, available that are offered in the Exchange.)

Updates to model notices informing employees of their eligibility to continue health-care coverage through the Consolidated Omnibus Budget Reconciliation Act are now available. The updates make it clear to workers that if they are eligible for COBRA continuation coverage when leaving a job, they may choose to instead purchase coverage through the Health Insurance Marketplace.

Employees and their families who are eligible for employer-sponsored coverage generally must be informed of their right to COBRA continuation coverage at the start of employment. They must also be informed of their right to purchase COBRA coverage when separating from a job. The proposed changes to the model notices would offer information on more affordable options available through the Marketplace, where workers and families may be eligible for financial assistance that would not otherwise be available for COBRA continuation coverage.

Scenario: Employee has a HDHP and goes to Hospital. Hospital offer to discount the employee’s deductible by 50%. (i.e. Employee owes only half of the deductible, $3,000 debt is now $1,500.) The plan pays the full amount due above the deductible.

Has fraud been committed (knowingly or not)?

It is fraud because there’s a 3rd party involved – the insurance carrier or self-funded medical program. are providing an HDHP contract which pays “after the deductible has been met” – pursuant to the IRS rules to establish HSAs, etc. The representation is to them – that the deductible has been met – when it has not been met – a lie to gain profit (in this case the payment of the balance from their coverage). 

If a participant pays their “50%” out of their HSA / HRA account – then the insurance may end up getting a feed that illustrated the participants hadn’t met their deductible – even if the hospital is billing as if they had.  It is not uncommon for an HSA administrator to process first and pass along their EOBs to the insurance to match up with the provider bills.  In those cases, it would be a problem – because the insurance isn’t going to pay the hospital anything without knowing the full deductible had been satisfied.

The DOJ has not prosecuted this type of fraud in many years, but it seems rife for a state DOI to get involved.

Thanks to my CEBS’ colleagues. The above example and discussion came from our online link discussion.

Employee Benefit Advisors blogged Oct 9, 2013 about court cases that have been falling under the radar. EBA said “These cases could dismantle health care reform as we know it.”  –  Yesterday the decision came down the “Court bars PPACA aid for federal exchange shoppers.” The decision has already been appealed, however, the way PPACA is written makes it very clear that the subsidy is available only to people who bought plans on state-run exchanges. Only 14 states have opted to set up their own marketplaces.

A conflicting ruling was also issued on an almost identical case by the 4th Circuit Court of Appeals in VA. To complicate things further, there are two other cases still pending before other circuit courts. These conflicting rulings mean that the issue will almost certainly be appealed to the U.S. Supreme Court later this year. If and when heard by the Supreme Court, expect a final decision regarding the availability of subsidies in federally facilitated marketplaces no sooner than June 2015.

Humpty Dumpty sat on a wall,
Humpty Dumpty had a great fall;
All the King’s horses, and all the King’s men
Cannot put Humpty Dumpty together again.

…so apropos