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Can corporations shift targeted workers who have known high medical costs from the company health plan to public exchange (aka Marketplace/SHOP) based coverage created by the Affordable Care Act? Some employers are beginning to inquire about it and some consultants are advocating for it.

 

Health spending is driven largely by those patients with chronic illness, such as diabetes, or those who undergo expensive procedures such as an organ transplant. Since a large majority of big corporations are self-insured and many more smaller employers are beginning to research this as an option to help control their medical premiums, shifting even one high-cost member out of the company health plan could potentially save the employer hundreds of thousands of dollars a year by shifting the cost for the high-cost member claims to the Marketplace/SHOP plan(s).

 

It is unclear if the health law prohibits this type of action, which opens a door to the potential deterioration of employer-based medical coverage.

 

An employer “dumping strategy” can help promote the interests of both employers and employees by shifting health care expenses on to the public through the Marketplace.

 

It’s unclear how many companies, if any, have moved any of their sicker workers to exchange coverage yet, which just became available January 1, 2014, but even a few high-risk patients could add millions of dollars in claim costs to those Marketplace plans. The costs could be passed on to customers in the next year or two in the form of higher premiums and to taxpayers in the form of higher subsidy expenses.

 

A Possible Scenario

 

Here’s an example of how an employer “dumping-situation” it might work:

 

At renewal, an employer reduces the hospital/doctor network on their medical plan to make the company health plan unattractive to those with chronic illness or high cost medical claims. Or, the employer could raise the co-payments for drugs or physician visits needed by the chronically ill, also making the health plan unattractive and perhaps nudging high-cost workers to examine other options available to them.

 

At the same time, the employer offers to buy the targeted worker a high-benefit “platinum” plan in the Marketplace. The Marketplace/SHOP plan could cost $6,000 or more a year for an individual in premiums, but that’s still far less than the $300,000 a year in claim costs that a hemophilia patient might cost the company.

 

The employer could also give the worker a raise so they could buy the Marketplace/SHOP policy directly.

 

In the end, the employer saves money and the employee gets better coverage. And the Affordable Care Act marketplace plan, which is required to accept all applicants at a fixed price during open enrollment periods, takes over the costs for their chronic illness/condition.

 

Some consultants feel the concept sounds too easy to be true, but the ACA has set up the ability for employers and employees to voluntarily choose a better plan in the Individual Marketplace which could help save a significant amount of money for both.

 

Legal but ‘Gray’

 

The consensus among insurance and HR professionals is that even though the employer “dumping-strategy” is technically legal to date (as long as employees agree to the change and are not forced off the company medical plan), the action is still very gray. This is why many employers have decided this is not something they want to promote at this time.

 

Shifting high-risk workers out of employer medical plans is prohibited for other kinds of taxpayer-supported insurance. For example, it’s illegal to persuade an employee who is working and over 65 to drop company coverage and rely entirely on the government Medicare program. Similarly, employers who dumped high-cost patients into temporary high-risk pools established originally by the ACA health law are required to repay those workers’ claims back to the pools.

 

One would think there would be a similar type of provision under the Affordable Care Act for plans sold through the Marketplace portals, but there currently is not.

 

The act of moving high-cost workers to a Marketplace plan would not trigger penalties under ACA as long as an employer offers an affordable medical plan to all eligible employees that meets the requirements of minimum essential coverage, experts said.  If  workers are offered a medical plan by their employer that is affordable coverage and meets the minimum essential coverage requirements, workers cannot use tax credits to help pay for the Marketplace-plan premiums.

 

Many benefits experts say they are unaware of specific instances where employers are shifting high-cost workers to exchange plans and the spokespeople for AIDS United and the Hemophilia Federation of America, both advocating for patients with expensive, chronic conditions, said they didn’t know of any, either.

 

But employers are becoming increasingly interested in this option.

 

This practice, however, could raise concerns about discrimination and could cause decreased employee morale and even resentment among employees who are not offered a similar deal, which could end up causing the employer more headaches and even potential discrimination lawsuits.

 

Many believe that even though this strategy is currently an option for employers, in the end, it may not be a good idea. This type of strategy has to operate as an under-the-radar deal between the employer and targeted employee and these type of deals never work out. Most legal experts who focus on employee benefits do not recommend this strategy either as it just opens the door of discrimination claims from employees.

 

Please contact our office for assistance in reviewing all of the benefit options available to your company and employees under ACA.

The Family Medical Leave Act (FMLA) allows employees to take 12 weeks of leave to care for their own or a family member’s serious health condition and up to 26 weeks for military caregiver leave. An employee can take this leave in one block, over several stretches of time or intermittently. For an employee to take intermittent leave, they need to provide a certification that there is a medical need for such leave.

 

While longer FMLA leaves are typically straightforward, the ability of an employee to take small increments of FMLA leave periodically can generate administrative headaches for employers and raises concerns about employee abuse of intermittent leave. The FMLA offers a number of tools (many of which are not employed) that employers can use to discourage abuse of intermittent leave. Below are eight of the best strategies for helping to get a handle on the problem.

 

Tip #1- Question the Original Certification

There are a number of opportunities to ensure that a certification calling for intermittent health related absences is sufficient, valid, and supports the need for intermittent leave. When an employee submits a certification for a chronic condition that will flare up and require intermittent leave (such as asthma or migraines), the HR professional reviewing the certification should consider these options:

 

Incomplete or insufficient certification

When a certification has missing entries or is vague, you may ask the employee the provide complete and sufficient information. The request must be made in writing and must specify the reason the certification was considered incomplete or insufficient. The employee must then provide the additional information within 7 days. If the employee fails to provide this information, leave may be delayed or denied.

 

Authentication and Clarification

You may contact the health care provider to ensure that they actually prepared the certification or to clarify the meaning of a response, but an HR professional, health care provider, leave administrator or management official to make the contact. The employee’s direct supervisor may not be the one who contacts the health care provider. During this process, be careful not to request more info than what is required to authenticate or clarify the form. This can be used at the recertification stage as well as the initial certification.

 

Tip #2- Ask for a Second Opinion

Employers who have reason to doubt the validity of an initial certification may ask for a second opinion. The physician may be one of the employer’s choosing, but it can not be one the employer uses on a regular basis. It is the employer’s responsibility to pay for the second opinion. If the first and second opinions differ, the employer may require a third health care provider certification, again at the expense of the employer. The third provider’s opinion is binding. Although there are a number of opportunities to ask for recertification of an employee’s serious health condition, you may not seek second or third opinions on recertification.

 

Tip #3-Ensure That All Absences Related To The Condition Are Counted

The job of managing intermittent leave is not over after an employee submits a certification that calls for sporadic health related absences. Employers must be certain that all absences related to the condition are counted against the employee’s FMLA entitlement, while at the same time ensuring that they are not counted against the employee under a no-fault attendance policy.

 

In larger organizations, front line supervisors must be the eyes and ears of the company and must pass along the information about FMLA covered intermittent absences to HR. This, in turn, requires employers to train supervisors to recognize absences that may be covered by FMLA.

 

Identifying FMLA absences may not be as simple as it may seem, in part because the US Department of Labor and the courts have held that the employee does not have to cite the FMLA in a request. If there is an existing certification, it is enough for the employee to notify the employer that they had a recurrence of the health condition covered by the certification. For first time health related absences, supervisors should be trained to notify HR any time an employee is out for more than three days with an illness, especially if an employee saw a physician during that time.

 

Tip #4-Require Employees To Follow Your Paid Leave Policy

Employers may require that employees use up paid leave time for their intermittent FMLA absences. In fact, all employers should include such a requirement in their FMLA policies and enforce the practice of using up paid time off during FMLA leave, in order to prevent the situation where an employee can take paid leave after their FMLA leave expires and thereby extend a leave of absence beyond the FMLA entitlement.

 

The 2008 FMLA regulations made it clear that employers may require employees to abide by your paid-time off policies in order to be paid for FMLA leave time.

 

Tip #5-Request Recertification

FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave, including intermittent leave. Unless there are changed or suspicious circumstances, these rules of thumb apply:

 

  • employees may be asked for recertification any time they seek to extend an existing FMLA leave
 
  • for long term conditions or conditions that may require sporadic absences, an employer may request recertification every 30 days in connection with an absence
 
  • if the employee is taking a solid block of leave for more than 30 days, the employer may ask for recertification if the leave extends beyond the requested leave period
 
  • if the employee is out on a leave that has been certified to extend for more than 6 months, the employer may seek recertification every 6 months
 
  • employers may ask for a new certification at the beginning of each leave year

 

As with initial certifications, the employee has 15 days to provide the recertification.

 

Tip #6-Follow Up On Changed Or Suspicious Circumstances

You should always keep tabs on use of FMLA leave, and may want to pay special attention to patterns of intermittent leave usage. You may seek recertification more frequently than 30 days if: a) the circumstances described by the existing certification have changed, or b) the employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.

 

“Changed circumstances” include a different frequency or duration of absences or increased severity or complications from the illness. The regulations allow you to provide information to the health care provider about the employee’s absence pattern and ask the provider if the absences are consistent with the health condition.

 

“Information that casts doubt on the employee’s stated reason for the absence” may be information you receive (possibly from other employees) about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition. An example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.

 

A note of caution- Employers who receive information from coworkers about an employee’s actions while on leave must be certain the information they receive is credible and that the coworker has no hidden motive against the person on leave. Always attempt to independently verify information received from coworkers before taking action or requesting recertification for suspicious circumstances.

 

Tip #7-Control The Way That Employees Schedule Planned Treatment

Employees may take intermittent leave for treatment, therapy, and doctor visits for serious health conditions. FMLA regulations specifically require that employees schedule those absences for planned medical treatment in a way that least disrupts the company operations. When you receive a request for this type of intermittent leave, communicate with the employee about the frequency of the treatment, the office hours of the health care provider and way that the employee may be able to alter their schedule to cut down on disruptions.

 

Tip #8-Consider Temporary Transfers

If the need for intermittent leave is foreseeable, you may transfer the employee during the period of the intermittent leave to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave. The alternate position must have equivalent pay and benefits, but does not have to provide equivalent duties. If the employee asks to use leave in order to work a reduced work schedule, you may also transfer the employee to a part time role at the same hourly rate as the employee’s original position, as long as the benefits remain the same.

 

You may also allow the employee to work in the employee’s original position, but on a part time basis. You may not eliminate benefits that would otherwise not be provided to part time employees, but may proportionately reduce benefits such as vacation leave if it is the employer’s normal practice to base the benefits on the number of hours worked.

 

These tips will not entirely eliminate the problem of employees trying to take advantage of the intermittent leave regulations, but they will help.

The Patient Protection and Affordable Care Act (the “ACA”) adds a new Section 4980H to the Internal Revenue Code of 1986 which requires employers to offer health coverage to their employees (aka the “Employer Mandate”). The following Q&As are designed to deal with commonly asked questions.  These Q&As are based on proposed regulations and final regulations, when issued, may change the requirements.

 




Question 3: When Is the Employer Mandate Effective and What Transition Rules Apply?

Large employers are subject to the Employer Mandate beginning on January 1, 2014. However, the effective date for employers that have fiscal year health plans is deferred if certain requirements are met. There are also special transition rules for offering coverage to dependents, offering coverage through multi-employer plans, change in status events under cafeteria plans, determining large employer status, and determining who is a full-time employee.

Fiscal Year Health Plans

An employer with a health plan on a fiscal year faces unique challenges concerning the Employer Mandate. Because terms and conditions of coverage may be difficult to change mid-year, a January 1, 2014 effective date would force fiscal year plans to be compliant for the entire fiscal 2013 plan year. Recognizing the potential burdens, the IRS has granted special transition relief for employers that maintained fiscal year health plans as of December 27, 2012. Both transition relief rules apply separately to each employer in a group of related employers under common control.

 

  • Rule #1- employers will not be subject to a penalty on the basis of any full-time employee who (under a fiscal year plan in effect as of 12/27/12) would be eligible for coverage as of the first day of the 2014 fiscal plan year. The transition rule applies only if such employee is offered coverage, no later than the first day of the 2014 plan year, that otherwise meets the requirements of the Employer Mandate.

     

  • Rule #2- an employer has one or more fiscal year plans (that have the same plan year as of December 27, 2012) and, together, either cover at least 25% of the employees or offered coverage to at least one third of the  employees during the most recent open enrollment period that ended prior to December 27, 2012. If one of these prerequisites is met, the employer will not be subject to a penalty on the basis of any full-time employee who (i) is offered coverage, no later than the first day of the 2014 plan year, that otherwise meets the requirements of the Employer Mandate, and (ii) would not have been eligible for coverage under any calendar year group health plan maintained by the employer as of December 27, 2012.

     

Coverage of Dependents

Large employers must offer coverage not just to their full-time employees but also to their dependents to avoid the Employer Mandate penalty. A “dependent” for this purpose is defined as a full-time employee’s child who is under age 26. Because this requirement may result in substantial changes to eligibility for some employer-sponsored plans, the IRS is providing transition relief for 2014. As long as employers “take steps” during the 2014 plan year to comply and offer coverage that meets this requirement no later than the beginning of the 2015 plan year, no penalty will be imposed during the 2014 plan year solely due to the failure of the employer to offer coverage to dependents.

Multiemployer Plans

Multiemployer plans represent another special circumstance because their unique structure complicates application of the Employer Mandate rules. These plans generally are operated under collective bargaining agreements and include multiple participating employers. Typically, an employee’s is determined by considering the employee’s hours of service for all participating employers, even though those employers generally are unrelated. Furthermore, contributions may be made on a basis other than hours worked, such as days worked, projects completed, or a percentage of earnings. Thus, it may be difficult to determine how many hours a particular employee has worked over any given period of time.

To ease the administrative burden faced by employers participating in multiemployer plans, a special transition rule applies through 2014. Under this transition rule, an employer whose full-time employees participate in a multiemployer plan will not be subject to any Employer Mandate penalties with respect to such full-time employees, provided that:

 

(i) the employer contributes to a multiemployer plan for those employees under a collective bargaining agreement or participation agreement

 

(ii) full-time employees and their dependents are offered coverage under the multiemployer plan, and

 

(iii) such coverage is affordable and provides minimum value.

This rule applies only to employees who are eligible for coverage under the multiemployer plan. Employers must still comply with the Employer Mandate under the normal rules with respect to its other full-time employees.

Change in Status Events under Fiscal Year Cafeteria Plans

The IRS has also issued transition rules that apply specifically to fiscal year cafeteria plans. Under tax rules applicable to cafeteria plans, an employee’s elections must be made prior to the beginning of the plan year and may not be changed during the plan year, unless the employee experiences a “qualifying event”. An employee’s mid-year enrollment in health coverage through an Exchange or in an employer’s health plan to meet the obligation under the ACA’s individual mandate to obtain health coverage is not a “qualifying event” under the current cafeteria plan rules.

The IRS addresses this by providing that a large employer that operates a fiscal year cafeteria plan may amend the plan to allow for mid-year changes to employee elections for the 2013 fiscal plan year if they are consistent with an employee’s election of health coverage under the employer’s plan or through an Exchange. Specifically, the plan may provide that an employee who did not make a Sec. 125 election to purchase health coverage before the deadline for the 2013 fiscal plan year is permitted to make such an election during the 2013 fiscal plan year, and/or that an employee who made a Section 125 election to purchase health coverage is permitted to revoke/change such election once during the 2013 fiscal plan year, regardless of whether a qualifying event occurs with respect to the employee.

This transition rule applies only to elections related to health coverage and not to any other benefits offered under a cafeteria plan. Any amendment to implement this transition rule must be adopted no later than December 31, 2014 and can be retroactively effective if adopted by such date.

Determining Large Employer Status and Who is a Full-Time Employee

The IRS has also issued transition rules for determining large employer status and determining who is a full-time employee. In general, large employer status is based on the number of employees employed during the immediately preceding year. In order to allow employers to have sufficient time to prepare for the Employer Mandate before the beginning of 2014, for purposes of determining large employer status for 2014 only, employers may use a period of no less than 6 calendar months in 2013 to determine their status for 2014 (rather than using the entire 2013 calendar year).

The Patient Protection and Affordable Care Act (the “ACA”) adds a new Section 4980H to the Internal Revenue Code of 1986 which requires employers to offer health coverage to their employees (aka the “Employer Mandate”). The following Q&As are designed to deal with commonly asked questions.  These Q&As are based on proposed regulations and final regulations, when issued, may change the requirements.

Question 2: Who Is Eligible for a Premium Tax Credit or Cost-Sharing Subsidy?

As noted in Part 1, failing to offer full-time employees minimum essential coverage, or coverage that meets the affordability or minimum value requirements, is not enough to trigger liability under the Employer Mandate. Two additional things must occur before any penalty will be assessed:

 

  1. one of the full-time employees must enroll in health coverage offered through an Exchange.

     

  2. one of the full-time employees must also receive an Exchange subsidy (a premium tax credit or cost-sharing subsidy).

 

 

Thus, an employer should consider which employees are potentially eligible for an Exchange subsidy when deciding how to comply with the Employer Mandate. It is important to note that the employee must qualify for the Exchange subsidy. An employee’s dependent receiving an Exchange subsidy (i.e. an adult child who is not a tax dependent of the employee) will not cause an Employer Mandate penalty.

Coverage Through an Exchange

In order to be eligible to receive an Exchange subsidy, an individual must enroll in health coverage offered through the Exchange. Under the ACA, an Exchange will be established in each state, either by the state or by the federal government (or a combination of the two). An Exchange is a governmental entity or nonprofit organization that serves as a marketplace for health insurance for individuals and small employers. Health insurance offered through the Exchanges must cover a minimum set of specified benefits and must be issued by an insurer that has complied with certain licensing and regulatory requirements.

Eligibility for an Exchange Subsidy

There are two Exchange subsidies available:

 

  • The premium tax credit- This is intended to help individuals purchase health coverage through the Exchange. The credit is available only to legal U.S. residents whose household income is 100% - 400% of the federal poverty line (“FPL”). Legal resident aliens also qualify for the credit if their household income is below 100% of the FPL since they are not eligible for Medicaid. Individuals who are eligible for Medicaid or Medicare, or certain other government-sponsored coverage (like CHIP or VA health care), are not eligible for premium tax credits.

    An employee is not eligible for a premium tax credit if the employee is either (i) enrolled in an employer-sponsored plan or (ii) eligible for an employer-sponsored plan that meets the affordability and minimum value requirements.

 

  • The cost-sharing subsidy- Cost-sharing subsidies, which reduce cost-sharing amounts such as co-pays and deductibles, are available to individuals who have a household income no greater than 250% of the FPL and enroll in “silver-level” coverage through the Exchange. An employee whose household income is 200% of the FPL may as a result be eligible for a premium tax credit to help defray the cost of monthly insurance premiums, and a cost-sharing subsidy to help reduce the amount of out-of-pocket cost (like co-pays and deductibles) to which the Exchange-enrolled employee otherwise would be subject to.



“Certification” of Eligibility for an Exchange Subsidy to Employer

The Employer Mandate penalty applies only when the employer has first received “certification” that one or more employees have received an Exchange subsidy. The IRS will provide this certification as part of its process for determining whether an employer is liable for the penalty. This penalty will occur in the calendar year following the year for which the employee received the Exchange subsidy (i.e. the employer would receive the penalty in 2015 for a employee Exchange subsidy beginning in 2014). Under IRS issued procedures, employers that receive notice of certification will be given an opportunity to contest the certification before any penalty is assessed.

In addition, Exchanges are required to notify employers that an employee has been determined eligible to receive an Exchange subsidy. The notification provided will identify the employee, indicate that the employee has been determined eligible to receive an Exchange subsidy, indicate that employer may be liable for an Employer Mandate penalty, and notify the employer of the right to appeal the determination. These notices will be useful in giving employers an opportunity to correct erroneous Exchange information and protect against erroneous penalty notices from the IRS. These notices will also be useful in budgeting for any penalties that may be owed.

Planning Consideration
The Employer Mandate penalty applies only to an employer failing to offer health coverage if one or more of its full-time employees enrolls in insurance coverage through an Exchange, and actually receives either a premium tax credit or a cost-sharing subsidy. Unless a full-time employee enrolls in an Exchange and obtains the tax credit or subsidy, the employer is off the hook. This can lead to some surprising exemptions from the penalty.

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