IRS Releases Health FSA Guidance

Posted by admin on April 17, 2014  |   No Comments »
On March 28, 2014, the IRS released Chief Counsel Memorandum Number 201413006, which clarifies the correction procedures for ineligible expenses that have been paid or reimbursed from a health FSA. The correction procedures for improper debit card payments provided for in the 2007 proposed cafeteria plan regulations may be used for other ineligible expenses paid under the plan, even those not related to debit card payments. The correction procedures include: demand repayment; withhold the payment from compensation; apply a claims substantiation or offset against future claim reimbursements; and treat the payment as any other business indebtedness (which may include reporting the amount as taxable wages on the participant’s Form W-2). The steps may be taken in any order, but treating the payment as business indebtedness must be used as the choice of last resort.

On the same day, the IRS also released Chief Counsel Memorandum 201413005, which provides guidance on how a health FSA carryover will affect an individual’s eligibility for an HSA. As provided under IRS Notice 2013-71, issued in October 2013, employer plan sponsors may now permit health FSA participants to carry over up to $500 in unused funds to the next plan year. The carryover provision is optional and would require a plan amendment to implement.

As further background, any individual who is a participant in a general purpose health FSA is not eligible to make or receive contributions to an HSA. Thus, an individual who carries over health FSA funds will be ineligible for HSA contributions for the entire year in which the health FSA funds are carried over, even after the carryover funds are exhausted. To maintain HSA eligibility, the individual may carry over the amount to an HSA-compatible FSA (i.e., a limited purpose or post-deductible FSA) or elect to waive the FSA carryover amount.

This type of documentation is written for IRS field or service center employees as instructional material. It does not constitute formal guidance, but does give insight as to how the IRS may view a certain issue.

PPACA’s Annual Deductible Maximum Requirement Repealed

Posted by admin on April 15, 2014  |   No Comments »

On April 1, 2014, President Obama signed HR 4302 into law, creating Public Law No. 113-92. The law, Protecting Access to Medicare Act of 2014, includes a provision eliminating the annual deductible maximum of $2,000 for single and $4,000 for other than self-only coverage. This annual deductible applied only to non-grandfathered small group insurance market plans (not to grandfathered small group, self-insured employer plans or large group plans). Due to this repeal, small employers will have the flexibility to offer high-deductible plans (and pair them with consumer reimbursement arrangements such as HSAs, HRAs and health FSAs) in the small-group market, without concern that these policies will be restricted or eliminated in the future. The law is effective retroactively to March 23, 2010 (the date health care reform originally was enacted).

Public Law No. 113-92

IRS Releases New SIMPLE Plan Fix-it Guide

Posted by admin on March 31, 2014  |   No Comments »

On Feb. 25, 2014, the IRS released a new Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) IRA plan checklist and a new fix-it guide. As a reminder, a SIMPLE plan is a retirement plan available to any type of employer (that does not already have a plan) with 100 or fewer employees (who earned $5,000 or more in the previous year) to provide a way for employees to contribute salary, and requires either a matching or fixed contribution from the employer.

The mistakes addressed by the checklist and fix-it guide include:

  • The SIMPLE IRA plan document hasn’t been updated to reflect changes in the law.
  • The business sponsors another qualified retirement plan.
  • The employer has more than 100 employees.
  • The employer excluded an eligible individual.
  • The employer used the wrong compensation definition to calculate deferrals and contributions.
  • The employer contributions of elective deferrals were incorrect or untimely.
  • Notification requirements were not followed.
  • Employer contributions were not given to terminated eligible employees.

SIMPLE IRA Plan Checklist and Fix-it Guide

IRS Newsletter Discusses Retirement Plan Compliance, myRA Program Information and More

Posted by admin on March 28, 2014  |   No Comments »

On March 4, 2014, the IRS published Issue 2014-3 of Employee Plans News. In this edition of the publication, the IRS reviews various retirement plan issues, including correction options for 457(b) plans and procedures for ensuring plan compliance for 401(k) and defined benefit plans. The newsletter provides helpful updates for plan sponsors and insight into where the IRS is focusing its resources. The newsletter also announces updates to numerous publications, including the 2013 Form 8955-SSA and fix-it guides for SIMPLE and Simplified Employee Pension (SEP) plans. Finally, the newsletter discusses the recently announced myRA program. Employers currently sponsoring retirement plans, or considering implementing a new retirement plan, should review this newsletter for important information.

Employee Plans News Issue 2014-3

Questions Answered About the Shared Responsibility Final Regulations

Posted by admin on March 26, 2014  |   No Comments »

On February 10, 2014, the US Treasury Department (Treasury) released Final Regulations (Regulations) with respect to the Shared Responsibility provisions of the Patient Protection and Affordable Care Act (ACA).  The Shared Responsibility provisions of the ACA are also known as the “play-or-pay” requirements.  At the same time, Treasury also released a fact sheet, and questions and answers clarifying key provisions of the play-or-pay rules.

The play-or-pay rules were originally supposed to go into effect on January 1, 2014, but the White House and the Internal Revenue Service (IRS) (Notice 2013-45) delayed enforcement of play-or-pay until January 1, 2015.  When play-or-pay enforcement was delayed, the impact on certain transition relief that applied for 2014 was unclear.  The Regulations establish a further delay and clarify aspects of the previously released proposed regulations and guidance, including the impact on certain transition relief.

Model Consulting discussed the Regulations with Peter Marathas, a partner at the nationally prominent law firm Proskauer Rose and the head of its Health Care Reform Task Force. Mr. Marathas and Proskauer provide compliance support to Model Consulting on all benefits matters, including the ACA.

 1. Model Consulting: Before we discuss the Regulations, can you give us an overview of who is and who is not generally subject to the play-or-pay requirements?


Marathas: In general, only employers who employ 50 or more full-time employees (including full-time equivalents) (FTE) in the prior calendar year are considered “applicable large employers” (ALEs) subject to the play-or-pay requirements.  An employer is an ALE for a calendar year if it employed an average of at least 50 FTE on the employer’s business days during the preceding calendar year. Solely for purposes of determining ALE status (but not for ACA penalty purposes), the hours of service of full-time equivalent employees (e.g., part-time employees) are included in the calculation. Example: During each month of 2015, an employer has 20 full-time employees, each of whom averages 35 hours of service per week, and 40 part-time employees, each of whom averages 90 hours of service per month. In this example, each of the 20 employees who average 35 hours of service per week count as one full-time employee for each month. To determine the average number of full-time equivalent employees for each month, take the total hours of service of the part-time employees (up to 120 hours of service per employee) and divide by 120. The result is that the employer has 30 full-time equivalent employees each month (40 × 90 ÷ 120 = 30). By adding the two categories of employees together, the employer would have 50 FTE. Therefore, the employer is an applicable large employer for 2016.


Model Consulting: We heard that there was a delay for certain small employers included in the Final Regulations.  Is that true?


Marathas: Among the big news in the Regulations, is that for employers with between 50 and 99 FTE, the implementation date of the play-or-pay rules has been delayed until 2016.  To be eligible for the delay, those employers with between 50 and 99 FTE cannot reduce headcount to qualify for the delay and they must generally maintain the same benefits that were in place on February 9, 2014.These employers will have until the start of their 2016 plan year to comply as long as they haven’t changed their plan year after February 9, 2014 to begin at a later date. This is welcome relief for smaller employers.


Model Consulting: When the play-or-pay rules were effective for 2014, the IRS permitted small employers to count FTE over a shorter period of time.  Is that relief included in the Regulations?


Marathas: Yes, it is.  To determine whether an employer is an ALE for 2015, an employer can choose any period of at least six consecutive months during 2014 to determine its average number of FTE.
4. Model Consulting: What about non-calendar year plans?  When do they have to comply?


Marathas: The Regulations permit employers with non-calendar year plans to use the first day of the plan year starting on or after January 1, 2015 as their start date for compliance with the play-or-pay rules, as long as certain conditions are met.  To qualify, one or more of the following three conditions must be met (the first item below provides relief only to a subset of employees, whereas the other two provide relief to all employees of a qualifying employer):

  1. The play-or-pay penalty will not apply from January 1, 2015 to the first day of the 2015 plan years with respect to employees (i) who are eligible for coverage on the first day of the 2015 plan year under the eligibility terms of the plan in place as of February 9, 2014 (whether or not they take the coverage), and (ii) who are offered “affordable coverage” that reimburses at a minimum value of at least 60% (Bronze coverage) on the first day of the 2015 plan year.
  2. If 25% of all employees were covered under the plan as of any date in the 12 months ending February 9, 2014, or 33% of all employees were offered coverage during the last open enrollment period before February 9, 2014, no penalty will be assessed from January 1, 2015 to the first day of the 2015 plan year.
  3. If 33% of all full-time employees were covered under the plan as of any date in the 12 months ending February 9, 2014, or 50% of all full-time employees were offered coverage during the last open enrollment period before February 9, 2014, no penalty will be assessed from January 1, 2015 to the first day of the 2015 plan year.

This transition relief permits employers sponsoring qualifying non-calendar year plans some additional time to get ready for compliance.



 Model Consulting: Can you briefly provide an overview of the play-or-pay rules that will apply to ALE’s?


Marathas: There are two potential penalties:  the “no insurance” penalty and the “unaffordable insurance” penalty. Here are the general rules for 2015 and after:An applicable large employer will be liable for the play-or-pay penalty if:

  1. The no insurance penalty.  The employer does not offer health coverage or offers coverage to fewer than 95% (70% for 2015) of its full-time employees and their children, and at least one of the full-time employees receives subsidized coverage on the exchange or marketplace; then the employer will be assessed a penalty equal to $2,000 multiplied by all of its full-time employees, reduced by the first 30 (this number is increased to 80 for 2015—see Q&A 7 below);


  1. The unaffordable insurance penalty.  The employer offers health coverage to all or at least 95% (70% for 2015—see Q&A 6 below) of its full-time employees (and their children), but the coverage offered is not deemed affordable  by the federal government or does not reimburse insurance costs at an actuarial value equal to at least 60% (collectively “affordable coverage”) and at least one full-time employee who does not receive affordable coverage obtains subsidized coverage on the exchange or marketplace; the employer will be assessed a penalty of $3,000 per year multiplied by each full-time employee who obtained subsidized coverage on an exchange or marketplace.

The $2,000 or $3,000 penalties are non-deductible and they are assessed on a monthly basis (i.e., 1/12th of $2,000 or $3,000, as applicable, per month).  The penalty is assessed on an EIN basis.



 Model Consulting: Can you explain how the Regulations relaxed the “95% rule”?


Marathas: To permit ALEs an opportunity to address coverage and other issues, the Regulations reduce the 95% rule to 70% for 2015 only.This relaxation of the no-insurance percentage provides all employers subject to the play-or-pay rules breathing room in 2014 and 2015 to address coverage and certain employment practices, including independent contractor issues, which we can discuss in the future.



Model Consulting:  What do the Regulations say about the reduction in 30 rule?


Marathas: As noted above in question 5, the “reduction factor” for the no-insurance penalty is increased to 80 from 30 for 2015.  (It will return to 30 in 2016.)  This will mean that more “smaller” employers will avoid the no insurance penalty.  This is significant.  Consider this example:Sara’s Crab Shop employs, on average, 133 FTE every month during 2014.  Sara’s correctly assumes that because they had, on average, 100 or more FTE in 2014, they are subject to play-or-pay for 2015.  But, only 79 of Sara’s employees are actual full-time employees.  The remaining 54 FTE are part time employees.If Sara’s fails to offer insurance and one of its full-time employees receives subsidized coverage on the exchange or marketplace, however, the penalty that will be assessed against Sara’s is ZERO.  Why? Because the reduction factor (80 for 2015) exceeds Sara’s total number of full-time employees (79).  As long as Sara’s continues to employ less than 80 full-time employees, they will not be subject to any play-or-pay penalties in 2015.Note that when the reduction factor returns to 30 in 2016, Sara’s would be subjected to a penalty equal to $98,000 ((79 – 30) X $2,000).


Model Consulting: How soon after a smaller employer becomes an ALE does the employer have to comply with the play-or-pay requirements?


Marathas: The Regulations provide a “grace period” for employers who newly determine that they are ALEs.  In the first year in which an employer becomes an ALE, with respect to any full-time employee to whom the employer did not offer insurance coverage, the employer will not be assessed either the no-insurance or the no affordable insurance penalty for January, February and March of the first year in which the employer is an applicable large employer, as long as the full-time employee (and his or her children) is offered coverage (or affordable coverage) by April 1.  If coverage is not offered by April 1, the appropriate penalty will apply for the first three months of the year.


Model Consulting: Beginning with the first day of the first plan year starting on or after January 1, 2014, all employers must offer insurance coverage to eligible full-time employees within 90 days of their first being eligible.  Some employers have “orientation periods” during which they and the employee evaluate whether the position is a good fit.  Have the regulators addressed this?


Marathas: Correct, under the ACA coverage must be offered within the first 90 days after a person is hired or becomes eligible for insurance (if later).  Of course, some states have shortened this period for insured plans, like California, which establishes a 60 day limit.  Although not included in the final regulations, the regulators released proposed regulations after the final regulations in which they proposed a rule that would permit employers to use up to a month (minus a day) of employment as an orientation period.  The 90 day waiting period could then start after the end of that orientation period.  Note that employers using an orientation period should clearly state this requirement in their summary plan description and plan document.


Model Consulting: I note the rule requires that coverage be offered to 95% (70% in 2015) to all full-time employees and their children.  A couple of questions here:  (i) who are considered to be children and (ii) if an employer doesn’t offer coverage for children now in 2014 will they have to start offering coverage for children in 2015?


Marathas: Generally, under the ACA, employers must offer coverage to children up to age 26, regardless of whether they depend on their parent or parents for support, live with their parents or have another job that offers insurance.  For purposes of the play-or-pay mandate, the term “children” includes all biological children, adopted children and children placed for adoption.  According to the final regulations, the term does not include either foster children or step-children.  Employers that want to exclude coverage for foster children and/or step-children must include that exclusion in their plan document and summary plan description.  Since there is no ready definition of what a “step-child” is or is not, care should be taken in drafting a definition for the term.Federal law does not require that “spouses” be offered coverage, but for insured plans, employers should check state law to see if state law requires that coverage.Under the final regulations, an employer that takes steps during its 2015 plan year toward offering coverage to children will not be subject to the play-or-pay penalties solely because it fails to offer coverage to children in the 2015 plan year.This transition relief applies to employers for the 2015 as long as they did not offer coverage to children in either the 2013 or the 2014 plan year.



Model Consulting: How does an employer know if it offers affordable coverage?


Marathas: If an employee’s share of the premium for employer-provided individual only coverage would cost the employee more than 9.5% of his/her annual household income, the coverage is not considered affordable for that employee.



 Model Consulting: Household income?  How is an employer supposed to know what household income is?


Marathas: Fortunately, they don’t.  The final regulations maintain the three safe-harbors that employers may use instead of “household income” to determine whether coverage is affordable.  These three affordability safe harbors are

  1. the Form W-2 wages safe harbor,
  2. the rate of pay safe harbor, and
  3. the federal poverty line safe harbor.



 Model Consulting: Are employers required to use these safe harbors? Can they use different safe harbors for different employee?  How do they each work?


 Marathas: These safe harbors are all optional. An employer can use one or more of the safe harbors for all of its employees or for any reasonable category of employees, as long as it does so on a uniform and consistent basis for all employees in a category.The Form W-2 Wages Safe Harbor generally is based on the amount of wages paid to the employee that are reported in Box 1 of that employee’s Form W-2.  Coverage is affordable under the W-2 Safe Harbor if the employee’s cost for individual coverage does not exceed 9.5% of his Box 1 W-2 wages for the current year.  Remember that this is gross income reduced by pre-tax payments for health insurance and pre-tax contributions to retirement plans, cafeteria plans and similar arrangements, so the number might be lower than an employer might anticipate.The Rate of Pay Safe Harbor generally is based on the employee’s rate of pay at the beginning of the coverage period, with adjustments permitted, for an hourly employee, if the rate of pay is decreased (but not if the rate of pay is increased). Using the Rate of Pay Safe Harbor, the employer determines whether the monthly cost of individual coverage for the lowest cost minimum value plan exceeds 9.5% of the employee’s hourly rate multiplied by 130.The Federal Poverty Line Safe Harbor generally treats coverage as affordable if the employee contribution for individual coverage at the lowest cost plan reimbursing at a 60% minimum value for the year does not exceed 9.5% of the federal poverty line for a single individual for the applicable calendar year.



 Model Consulting: How does an employer know if a plan reimburses at a level of at least 60% value?


Marathas: A plan provides minimum value if it covers at least 60 percent of the total allowed cost of benefits that are expected to be incurred under the plan. The Department of Health and Human Services (HHS) and the IRS have produced a minimum value calculator. By entering certain information about the plan, such as deductibles and co-pays, into the calculator employers can get a determination as to whether the plan provides minimum value.

HHS Extends Comment Period for the Proposed Rule Regarding Administrative Simplification

Posted by admin on March 24, 2014  |   No Comments »

On March 3, 2014, HHS extended the comment period regarding the Administrative Simplification: Certification of Compliance for Health Plans proposed rule. PPACA requires health insurers and other HIPAA-covered health plans to certify compliance with the standards and operating rules for certain electronic transactions — specifically, for eligibility for a health plan, health care claim status and health care electronic funds transfers and remittance advice. Published on Jan. 2, 2014, the proposed regulations explain how health plans would certify compliance with the adopted standards and operating rules for these three transactions, with an initial deadline of Dec. 31, 2015, for most plans.

The comment period for the proposed rule was to end on March 3, 2014. Representatives of entities that are new to HIPAA administrative simplification requirements had requested more time to analyze the Compliance Certification proposed rule. In response to that request, the comment period has been extended to April3,2014.


SHOP Guidance Released

Posted by admin on March 21, 2014  |   No Comments »

CMS has released several resources related to the Small Business Health Options Program (SHOP). The first resource is a fact sheet detailing how a small employer may enroll in SHOP coverage now through the assistance of a broker and how to qualify for the Small Business Health Care Tax Credit.

The second resource now available is a slide presentation, which provides additional information on SHOP functions. While the presentation is aimed at insurers, it does provide information that may be helpful to small employers. CMS clarifies that effective Jan. 1, 2015, all SHOPs must provide employee choice at a single metal level of coverage. Also effective Jan. 1, 2015, the federally facilitated SHOP (FF-SHOP) will provide employers with the choice to offer employees a single qualified health plan (QHP) or all QHPs at a single metal level of coverage. Employers will use the FF-SHOP website to offer coverage to employees and dependents, download billing invoices and make premium payments.

Lastly, three new FAQs have been added to the technical assistance portal. Question 825 clarifies that an employer with only one common-law employee may be eligible for SHOP coverage, even if the state generally requires a small employer to have at least two employees. This is because PPACA includes an employer with only one employee in the definition of a small employer, and CMS requires SHOP insurers to follow the federal definition. Question 830 provides that dependents in the FF-SHOP will be required to enroll in the same QHP and stand-alone dental plan as the employee. In other words, a dependent could not choose coverage in a different plan than the employee. Question 834 clarifies that for plan years beginning on or after Jan. 1, 2015, a small employer in the FF-SHOP will be expected to pay either the total invoice amount or total account balance, which indicates that a small employer will not be permitted to short pay the invoice amount to reflect a dropped member.

SHOP Fact Sheet
SHOP Slide Presentation
Question 825
Question 830
Question 834

Retroactive Enrollment and Premium Tax Credits Available for Individuals with Exceptional Circumstances

Posted by admin on March 19, 2014  |   No Comments »

On Feb. 27, 2014, CMS issued a “Bulletin to Marketplaces on the Availability of Retroactive Advance Payments of the Premium Tax Credits and Cost-sharing Reductions in 2014 Due to Exceptional Circumstances.” As background, to be eligible for a premium tax credit or cost-sharing reduction, an individual must submit an application to the marketplace, receive an eligibility determination and enroll in a qualified health plan (QHP) in the exchange. In many marketplaces (including the federally facilitated marketplace), technical issues in establishing automated eligibility and enrollment functionality have resulted in some applicants not receiving timely eligibility determinations and not being enrolled in a marketplace QHP. The bulletin provides that individuals experiencing such exceptional circumstances will be eligible for retroactive enrollment, premium tax credit and cost-sharing reduction.

If the individual has not been enrolled in any coverage since Jan. 1, 2014, when a determination of eligibility is received, he/she may be enrolled in a QHP through the marketplace retroactively to the date on which coverage would have been effective absent the exceptional circumstance. Similarly, the premium tax credit and cost-sharing reduction would be effective retroactively.

If the individual has enrolled in a QHP outside the marketplace, when a determination of eligibility is received, he/she is deemed to have been enrolled in a marketplace QHP and retroactively eligible for the premium tax credit and cost-sharing reduction, as described above. The individual will also be eligible for a special enrollment period if he/she would like to change to a marketplace QHP prospectively.

Any excess funds owed to the individual (because of premiums or expenses paid by the participant, which are now reduced because of the retroactive determination) may be paid to the individual by the insurer as either a refund or credit toward future amounts due.


CMS Releases Final Regulations on Reinsurance Fees, Benefit and Payment Parameters

Posted by admin on March 17, 2014  |   No Comments »

On March 5, 2014, CMS released final regulations related to benefit and payment parameters for 2015. The regulations included an announcement of the 2015 transitional reinsurance rate of $44 per covered life, which is a decrease from the 2014 rate of $63 per covered life. Self-insured plans that self-administer claims processing or adjudication will be exempt from the reinsurance rate for 2015 and 2016.

The fee will be payable in two installments. The reinsurance component of the fee will be due at the beginning of the calendar year following the year for which the fee is due. The component of the fee attributable to program expenditures will be due at the end of the calendar year following the year for which the fee is due. In practical terms, this means that for the 2014 benefit year, $52.50 per covered life is due in January 2015 and the remaining $10.50 is due in December 2015, for a total of $63 per covered life.

The open enrollment period in all exchanges for the 2015 benefit year will be Nov. 15, 2014, through Feb. 15, 2015. This is a change from the 2014 open enrollment period, which runs from Oct. 1, 2013, through March 31, 2014.

For 2015 plan years, the out-of-pocket maximum for non-grandfathered group plans (both self-insured and fully insured) may not exceed $6,600 for self-only coverage and $13,200 for family coverage (an increase from $6,350 and $12,700, respectively, in 2014).


CMS Announces Additional Two-year Reprieve for Individual and Small Group Plans that are PPACA Noncompliant

Posted by admin on March 14, 2014  |   No Comments »

On March 5, 2014, the Obama administration – via CMS – announced an additional two-year reprieve for individuals and small groups whose policies were cancelled last year. As background, on Nov. 14, 2013, President Obama – via a CMS letter – announced the availability of a transitional policy that allows individual and small group health insurance plans that were previously cancelled due to noncompliance with PPACA insurance mandates to be renewed in 2014 without being subject to PPACA-related penalties. (That announcement was addressed in the Nov. 19, 2013, edition of Compliance Corner.) Specifically, the Nov. 14, 2013, CMS letter states that health insurance coverage in the individual or small group market that is renewed for a policy year between Jan. 1, 2014, and Oct. 1, 2014, will not be considered to be out of compliance with the following market reforms:

  • Community rating
  • Guaranteed issue and renewability of coverage
  • Prohibition of coverage exclusions based on pre-existing conditions
  • Non-discrimination based on health status
  • Non-discrimination regarding health care providers
  • Comprehensive coverage (i.e., coverage of essential health benefits and the application of
    maximum out-of-pocket limits)
  • Coverage for participation in clinical trials

Coverage that was in effect on Oct. 1, 2013, is eligible for the transitional policy. To utilize the policy, insurers must send a notice to individuals or small businesses who otherwise would have received cancellation notices, informing them of any changes in the options that are available to them, which of the above market reforms would not be included in coverage, the potential option to enroll in exchange coverage (including information on exchange access and the availability of a premium tax credit), and their right to enroll in coverage outside the exchange that complies with the above reforms.

The March 5, 2014, memo states that the transitional policy will be extended through Oct. 1, 2016, meaning that the extension will apply to policy years beginning on or before Oct. 1, 2016. The newer memo also states that CMS will at a later time consider whether an additional one-year extension (i.e., through Oct. 1, 2017) would be appropriate.

Although the transitional policy allows the continuation of noncompliant plans at a federal level, individual and small group policies must be approved by state insurance regulators (i.e., state insurance commissioners and departments). Many states have chosen not to adopt the transitional policy. Since that is a state-by-state decision, small employers with cancelled plans should reach out to their state insurance department or insurer to determine if their cancelled plans might continue into 2014 or beyond.

CMS Memo