Congress Repeals the Cadillac Tax and Health Insurance Tax

Congress overwhelmingly passed an end-of-year spending bill and a companion tax extenders measure that contain several agenda items, including full repeal of the so-called Cadillac tax on high-cost health plans. The SECURE Act, a measure to promote savings by easing compliance burdens on defined-contribution and defined-benefit retirement plans, was attached to the appropriations bill.

E-Verify also was extended for another year, along with other workplace-immigration programs.

The House approved these measures on Dec. 17 and Senate passage followed two days later. President Donald Trump is expected to sign the bills into law.

Some of the items in the package that were previously passed by the House were consolidated in the new bills to facilitate the Senate's consideration and approval.


'Cadillac Tax' Repeal

The spending bill includes full repeal of the so-called Cadillac tax on high-cost health plans, which the House passed in July but the Senate had yet to consider. The spending bill also repeals two other Affordable Care Act (ACA) taxes not paid directly by employers: the health insurance tax (HIT) on fully insured health plans and the ACA's tax on medical devices.

The Cadillac tax, included in the ACA but delayed several times from taking effect, is a 40 percent excise tax on the cost of employer health plans in excess of annual cost thresholds. While the excise tax was intended to target high-value plans, without repeal "modest plans will also be impacted, meaning millions of Americans and their families could face higher co-pays and deductibles, causing some to decline employer-provided health care," wrote Johnny C. Taylor, Jr., SHRM-SCP, president and CEO of SHRM, in a letter sent in July to Congress.

Neil Bradley, chief policy officer at the U.S. Chamber of Commerce, commended congressional leaders for "setting the stage for permanently repealing the Cadillac tax, the HIT and the [medical device tax], which would finally put an end to the higher health costs that come from the taxes and would improve access to more affordable coverage."

AHIP, a national association of health insurers, said that because insurers passed along the cost of the HIT to employers in the form of higher premiums, "families in the small-employer market could see their premiums go up an additional $7,000 over the next 10 years because of this tax," absent repeal.

HR consultancy Mercer noted: "By axing the ACA's Cadillac, health insurance (repealed effective 2021) and medical device (repealed effective 2020) taxes, the spending package removes nearly all of the law's major funding provisions, except the employer shared-responsibility assessments."

Excerpt from Stephen Miller, CEBSDecember 19, 2019

5th Circuit Says ACA Individual Mandate Is Unconstitutional

A panel of the U.S. Court of Appeals for the 5th Circuit ruled Dec. 18, in Texas v. United States, that the Affordable Care Act's (ACA's) individual coverage mandate, effectively repealed as of this year, is unconstitutional. But the appellate panel then sent the case back to the district court to adjudicate whether the individual mandate's removal leaves the rest of the law standing.

On Dec. 14, 2018, district court judge Reed O'Connor ruled that because Congress eliminated the penalty on individuals without ACA-compliant health coverage effective in 2019, the ACA's individual mandate requiring people to have health insurance "can no longer be sustained as an exercise of Congress's tax power." O'Connor, who sits in the Northern District of Texas, then struck down the ACA in full, concluding that the individual mandate is so connected to the law that Congress would not have passed the ACA without it. His ruling, however, left the ACA in place pending an appeal to the Fifth Circuit.

On appeal, the split panel of the Fifth Circuit instructed the district court to rehear the matter and to provide additional analysis on whether the rest of the law passes constitutional muster without the individual mandate.

Excerpt from SHRM article By Stephen Miller, CEBSDecember 19, 2019

New Overtime Rule Raises Salary Cut-Off to $35,568

Employees who make less than $35,568 are now eligible for overtime pay under a final rule issued today by the U.S. Department of Labor (DOL). The new rate will take effect Jan. 1, 2020. To be exempt from overtime under the federal Fair Labor Standards Act, employees must be paid a salary of at least the threshold amount and meet certain duties tests. If they are paid less or do not meet the tests, they must be paid 1 1/2 times their regular hourly rate for hours worked in excess of 40 in a workweek. The new rule will raise the salary threshold to $684 a week ($35,568 annualized) from $455 a week ($23,660 annualized). A blocked Obama-era rule would have doubled the threshold, but a federal judge held that the DOL exceeded its authority by raising the rate too high. The new rule is expected to prompt employers to reclassify more than a million currently exempt workers to nonexempt status and raise pay for others above the new threshold. excerpt from SHRM article dated 9/24/19

PREVENTATIVE CARE BENEFITS ENHANCED FOR HSA PARTICIPANTS

The Internal Revenue Service (IRS) has issued a notice that expands preventative care benefits for high deductible health plans.  Prior to this notice, care and services for an existing or chronic condition were not included as preventative. The IRS and the Department of Health and Human Services (HHS) determined that certain medical care services received and items purchased, including prescription drugs for certain chronic conditions, should be classified as preventative care.

These medical services and items are limited to the specific medical care services or items listed for the associated chronic conditions specified in Notice 2019-45. The treasury has noted that each medical service, when prescribed for an individual with the related chronic condition, should be characterized by the following:

• The service or item is low-cost.
• There is medical evidence supporting high-cost efficiency (a large expected impact) of preventing exacerbation of the chronic condition or the development of a secondary condition.
• There is a strong likelihood, documented by clinical evidence, that with respect to the class of individuals prescribed the item or service, the specific service or use of the item will prevent the exacerbation of the chronic condition or the development of a secondary condition that requires significantly higher-cost treatments.

Any medical care previously recognized as preventive care for these rules is still treated as preventive care.

From BenefitMall August 7, 2019

House Passes Health Care 'Cadillac Tax' Repeal Bill

The U.S. House of Representatives voted on July 17 to abolish the so-called "Cadillac tax" on employer-sponsored high-value health plans, set to take effect in 2022. If the Senate passes the measure and the president signs it into law, the threat employers have faced from the tax would disappear.

The Cadillac tax, part of the Affordable Care Act (ACA) passed in 2010, is a 40 percent excise tax on the cost of employer health plans in excess of annual cost thresholds. It was intended to help generate tax revenue to help fund the ACA's subsidies for marketplace plans.

The tax, originally intended to take effect in 2018, was delayed twice by Congress and is now scheduled to go into effect in 2022. It is calculated based on: the costs of plan premiums (whether employer- or employee-paid and whether the plan is fully insured or self-funded); employer contributions and employee-elected payroll deductions to health savings accounts and flexible spending accounts; employer contributions to health reimbursement arrangements; the cost of group wellness programs; the value of coverage in onsite medical clinics; and certain other health benefits.  As currently projected: If the average plan cost to cover employees and dependents is more than $11,200 for individual coverage and $30,150 for family coverage, employers would pay the tax on plan costs for each covered person above these threshold amounts. 

"The House action to repeal the Cadillac tax is welcome news for both employers and employees," said Brian Marcotte, president and CEO of the National Business Group on Health. "Any tax that raises the cost of health benefits will harm the millions of working Americans and their families who rely on and value employer-sponsored health coverage.”

The Cadillac tax also has supporters. The tax "has a strong policy rationale: It will help slow health care cost growth," wrote Paul N. Van de Water, a senior fellow at the nonprofit Center for Budget and Policy Priorities, which advocates for sound fiscal policy.

Excerpt from SHRM Article dated 7-17-19 by Stephen Miller, CEBS

FINAL RULE RELEASED ON HRA'S

On June 13, 2019, the Departments of Labor, Health & Human Services and Treasury released final rules concerning Health Reimbursement Arrangements (HRAs).  The 497-page rule includes the creation of two new types of HRAs, the "Individual Coverage HRA” and the "Excepted Benefit HRA."

Advantages of the Individual Coverage HRA include, but are not limited to:

• Funds can be used to reimburse the employee's premiums for an individual health insurance policy.
• Reimbursements made to employees do not count towards the employee's taxable wages.
• The employer can choose to roll-over unused amounts into the following year.
• Coverage can be offered to different classes of employees (e.g.; full-time, part-time, seasonal, salaried, hourly)
• An offer of the Individual Coverage HRA represents an "offer of coverage" under the employer mandate, however, contributions must meet affordability guidelines. The IRS will release further guidelines regarding this later.

The Individual Coverage HRA also comes with restrictions and regulations including but not limited to:

• An offer of an Individual Coverage HRA cannot be made to any employee that is offered a traditional group health plan.
• If an offer of coverage is made to a class of employees, there is a minimum class size that is required. Size is typically 10% of that specific class of employees. For example, if an employer has 200 employees, a minimum of 20 employees would have to be in a specified class.
• Contributions can be in any amount that the employer chooses, but contributions must be consistent for all employees in a specified class.
• The employer must provide notice of the Individual Coverage HRA to employees.
• The employer must be able to substantiate that the employee is enrolled in an individual plan or Medicare (model notices are available).
• The employer must notify employees on an annual basis that the individual health insurance is NOT subject to ERISA.

The final rule also created the "Excepted Benefit HRA" which, starting in January of 2020, will permit employers to finance additional medical care. Employees can use the HRA without having to be enrolled in the group's traditional health plan.

The requirements associated with the "Excepted Benefit HRA" include, but are not limited to:

• The annual contribution is capped at $1,800.
• It must be offered in conjunction with a group health plan, but there is no requirement for the employee to enroll in that plan.
• The "Excepted Benefit HRA" cannot be used to fund group health or Medicare premiums.
• It can fund premiums for dental, vision, or short-term limited duration insurance.

Employers who want to offer the "Individual Coverage HRA" for January 1, 2020, can do so but employees will need to enroll in an individual plan during the 2019 open enrollment period (November 1, 2019 - December 15, 2019).

From Benefitmall, June 20, 2019

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UnitedHealth Group to Pass Drug Maker Rebates to Employer Customers

UnitedHealth Group and its pharmacy benefit manager, OptumRx, are expanding a new program that passes along pharmacy discounts they get from drug manufacturer rebates to all new employer customers.

The program will be for "all new employer-sponsored plans," taking effect Jan. 1, 2020, UnitedHealth and OptumRx said Tuesday. The effort builds on a program that began Jan. 1 of this year for people enrolled in UnitedHealthcare “fully insured commercial group benefit plans" who now have discounts applied when they fill their prescriptions at the retail pharmacy or through home delivery.

It’s the latest effort by health insurers and pharmacy benefit managers (PBMs) to pass along more prescription drug savings to customers in the face of intense criticism from employers, Congress and the Trump administration. The PBM’s share of rebates, which is the portion of the drug returned by the seller to the buyer, has turned into a nationwide controversy.

Rivals of UnitedHealth Group and OptumRx are also changing their business practices. Last year, for example, CVS Health, which owns the Caremark PBM and the health insurer Aetna, launched a “guaranteed net cost” pricing model that the company says returns 100% of drug rebates to its clients for better “predictability and pricing simplicity,” CVS executives said in December. And other PBMs like Cigna's Express Scripts subsidiary, have introduced programs with point-of-sale rebates for their clients.  

UnitedHealthcare and OptumRx said they “will only support new employer clients that incorporate point-of-sale discounts to consumers as part of their plan design” for new business proposals they receive for 2020. They expect the effort to save employers and health plan customers money, saying the “existing program has already lowered prescription drug costs for consumers by an average of $130 per eligible prescription.”

Excerpt from Forbes, Bruce Japsen 3-12-19

New HRA rules could allow businesses to circumvent ACA's employer mandate

Currently it is a violation of the ACA for large employers to allow health reimbursement arrangements to be used to help pay workers’ premiums instead of providing group health insurance. Under the ACA, large employers must offer affordable minimum essential coverage to 95 percent of employees in order to avoid penalties.

“Under current ACA rules there is a blanket prohibition, which a lot of employers in the under-200 employee market were bummed about. They would rather have a defined-contribution approach,” Welle said. 

The Trump administration under Executive Order 13813, issued in October 2017, proposed expanding the defined-contribution approach to employer health insurance coverage as part of an overall plan to repeal and/or replace the ACA and promote competition in U.S. health care. The proposals also included allowing association health plans and limited-duration, limited-benefit health plans. While legislation overturning the ACA seems dead, some rule-making continues.

Under the proposed HRA rules, employers generally would have to contribute a fixed amount into each individual HRA sufficient that any remaining premiums the employee would have to pay wouldn’t exceed a percentage of his or her household income to be considered affordable under the employer mandate, in order to avoid penalties, Welle said.

If finalized, the new rules wouldn’t take effect until Jan. 1, 2020, at the earliest. Welle said he believes that most large employers in the interim would probably continue to offer group health plans because they provide employers with a valuable recruitment incentive. In the latest statistics from Kaiser Family Foundation, roughly 16 million Americans were enrolled in the ACA marketplace or a Basic Health Program.

“But in the future, I see employers in the range of 50 to 200 employees who are burdened by the administrative responsibilities and the cost of administering health plans say this is a way they can do something for their employees but off-load some of the responsibilities. It is still developing and there is nothing to hang their hats on yet, but in 2021 or 2022 I can see the [smaller ones] saying this might be a good solution for us,” Welle said.

Pressly said the employers who right now are most interested in this are those with 50 to 100 workers and those who employ lots of part-time workers, as this could be a solution for providing coverage for them.  

But for larger employers, he said, “it looks really appealing but the way the rules are written if you roll it out for one class of employees, you will have to push it to all employees in that class and the benefits vary wildly from state to state.”

Employers and employees might not fully grasp all the differences between the individual health insurance marketplaces in the states and its limitations, and employer-sponsored group health insurance coverage, Pressly said. Resistance could arise when top executives accustomed to group health plans’ flexibility and coverage for expensive procedures such as in vitro fertilization encounter the limitations of many individual health insurance plans, including differences in what states require them to provide, he said.

In 2017, only 7 percent of the total U.S. population were in non group health insurance and 49 percent received employer-provided insurance. A combined 35 percent were on Medicaid or Medicare; 1 percent were on some other public plan and 9 percent were uninsured, according to the Kaiser.

Pressly said, “This goes hand-in-hand with state insurance markets and you really need to understand what that is, the cost and the coverage that is available to know what the ultimate employee experience is going to look like.”

Excerpt By:By MP McQueen | January 28, 2019 at 10:58 AM 

Calendar of Health and Welfare Benefit Plan Compliance Tasks** and Dates

Action Item Due Date

January
Reporting of value of health coverage on Form W-2 January 31, 2019*
(Optional for employers issuing under 250 W-2's)

February
File ACA information reporting returns with IRS (for paper filing) February 28, 2019*

March
DOL Form M-1 (for MEWAs) March 1, 2019*
Disclosure of creditable/noncreditable status of prescription drug coverage to CMS March 1, 2019
Provide ACA information reporting returns to individuals March 4, 2019
Last day for flexible spending accounts with 2½ month grace periods March 15, 2019

April
File ACA information reporting returns with IRS (for electronic filing) April 1, 2019*

May
Form 990 or Form 8868 if requesting extension May 15, 2019

July
Summary of Material Modifications for prior year amendments July 29, 2019
Form 720 filing and payment of PCORI fee July 31, 2019*
Form 5500 or file Form 5558 to request an extension July 31, 2019

August
Form 990 (if on extension) or Form 8868 if requesting additional extension August 15, 2019

September
Summary Annual Report (if no extension) September 30, 2019

October
Provide notice of creditable/noncreditable prescription drug coverage to participants October 14, 2019*
Form 5500 filed if on extension October 15, 2019

November
Form 990 (if additional 3-month extension) November 15, 2019
December
Summary Annual Report (if on extension) December 15, 2019
Deadline for correcting DCAP discrimination test failures December 31, 2019

**Assumes calendar plan and sponsor tax year. Does not account for weekends, extended due dates other than for Forms 5500 and 990, short plan years, or new plans. The “weekend rule,” which extends due dates falling on weekends to the following Monday, generally applies to filing deadlines and certain other acts under tax rules.

*Date does not vary regardless of plan year