Repeal...Delay...Replace - The GOP Plan for the Future of the ACA

It appears as though the growing consensus within the GOP leadership is that they need to insert one additional verb into their plans for dealing with the future of the ACA...Delay.

After a meeting with Vice President-Elect Mike Pence on Tuesday it seems that the strategy of repeal through budget reconciliation in the first 100 days of President-Elect Trump's presidency is still in their plans. However the replacement isn't going to come as quickly as some had thought, and many in the GOP might have hoped for.

There is discussion around repealing immediately but delaying the effective date of that repeal anywhere from 6 months to 3 years. 

In an article written by Senator Mike Lee and Representative Mark Walker in National Review they state it this way:

...But deleting Obamacare from federal statute will be only the first step in reforming federal health-care policy. ...We have a responsibility to fix the broken government policies that have crippled our health-care system for decades. This means providing a transition, for however many years, for the market to recover and be able to serve individuals and businesses with more affordable, accessible health coverage. This means implementing the best of the many free-market repair proposals that Republicans have been developing for the past six years. People need options, not heavy-handed government mandates.

The time period for that "transition" is still being debated.  Senate Majority Whip John Cornyn told Politico “We’re talking about a three-year transition now that we actually have a president who’s likely to sign the repeal into the law. People are being, understandably cautious, to make sure nobody’s dropped through the cracks,”

 

There is some resistance within the GOP to the prospect of delaying the effective date of the repeal. The House Freedom Caucus and most notably Senator John McCain have expressed opposition to any path forward that doesn't repeal and replace the law at the same time.  

 

What does seem clear at this point is that some major parts of the ACA will be repealed in the next few months via the budget reconciliation process. The effective date of those delays and how they will be replaced remain to be seen.

 

This leaves employers in the dark about exactly how their day to day requirements around the ACA will be impacted in 2017 and beyond. The Employer Mandate will almost certainly be part of the requirements that are repealed but a delay may mean it is business as usual for 2017 (and potentially beyond) from an administrative reporting and tracking perspective. A delay would most likely also mean all of the coverage requirements and ALE rules would stay in place.

 

This is certainly something that employers will watch closely in the coming weeks and months.

 

 

Health Insurance Marketplace Subsidy Notifications Update: CMS Suggests "Appeal everything just to be on the safe side".

We have had several clients ask us over the past few days if they should appeal every single notification that they receive from DHHS or just the ones where there truly was a mistake.  The notification states,  “You may file an appeal to the Marketplace if you believe there’s been a mistake regarding the employee’s eligibility for APTC or CSRs.”  This seems to make it clear that you only need to appeal the notices where you believe the employee received a subsidy in error, for example:

·         The employee was offered benefits at Open Enrollment as a FT employee and waived coverage.
·         The employee was offered benefits based on average hours worked over either the standard measurement period of the initial measurement period and waived coverage. 

 However I had a client call into the 800 number on the form and were told to “appeal everything”. I  thought this was odd so I called into the 800 number as well and had a very long talk with the folks at CMS. 

I was told that it is up to the employer but that they are suggesting to appeal everything “just to be on the safe side”. Which if I have to decode that means they are afraid that the system isn’t going to work like it should and penalties might go out in error,  so even the part-timers that technically did receive the subsidy correctly should be appealed. The problem in that case is that there really isn’t anything to appeal, because they got the subsidy legitimately. On the appeal form it states:

Use the space below to explain why this employee shouldn’t have been eligible for advance payments of the premium tax credit and cost-sharing reductions (if applicable). Use extra paper, if necessary. If you’re including documents to support your request, send us copies. Keep all original documents.

The issue is that they are in fact eligible. I explained this to the CMS rep and he agreed but just said his suggestion would be to explain the issue thoroughly in that section again “to be on the safe side”.  So at the end of the day it’s up to employers if they want to appeal, they technically shouldn’t have to appeal those non-full time employees. However, based on these recent conversations I am worried that if employers don’t appeal, something might fall through the cracks and they will wind up having to fight a penalty.  Employers very well may choose to put in the extra effort and appeal everything to ensure they wind up “on the safe side” of this issue.

Health Insurance Marketplace Subsidy Notifications

It appears as if the DHHS has recently been on a notice mailing binge.  Several of you have received a version of the notice below in the last few days.  CMS has issued a Q & A about the notices that you can access here.

 

Here are some summary Items to take note of:

-This is not an announcement of penalty, only a notice that  one of your employees applied for and was found eligible for a subsidy in the exchange.

-There is no action that needs to be takeen at this time as the IRS, not the HHS/Marketplace issues the penalties.

-If the system works correctly, then cross referencing this with the 1095-C reports they received should result in no further action if an appropriate offer was made and declined or if the employee is ineligible for coverage based on employment status.

-We would advise a client to appeal this particular notice is if they did actually offer the employee coverage and they still applied for the subsidy. In that case the employee should have never received the subsidy and that is something you can appeal with the HHS/Marketplace and avoid this issue going to the IRS.  There is information on how to appeal at the end of the form, the client has 90 days from reception of the notice.  There is also information regarding how to appeal in the above Q & A.

As always, please don't hesitate to reach out to your Scott Advisor with additional questions. Thanks!

ACA Information Returns May Continue To Be Filed After June 30, 2016

The IRS released the following statement yesterday regarding ACA reporting deadlines:

If you are an applicable large employer, self-insured employer, or other health coverage provider, the deadline to electronically file ACA information returns with the IRS is midnight ET on June 30, 2016.  The ACA Information Returns (AIR) system will remain up and running after the deadline.  If you are not able to submit all required ACA information returns by June 30, 2016, please complete the filing of your returns after the deadline.

It is important to note the following:

• The AIR system will continue to accept information returns filed after June 30, 2016.  In addition, you can still complete required system testing after June 30, 2016.
• If any of your transmissions or submissions was rejected by the AIR system, you have 60 days from the date of rejection to submit a replacement and have the rejected submission treated as timely filed.
• If you submitted and received “Accepted with Errors” messages, you may continue to submit corrections after June 30, 2016.

The IRS is aware that some filers are still in the process of completing their 2015 tax year filings.  As is the case for other information returns, penalties may be associated with the submission of the ACA information returns for failure to timely file required returns.  As the IRS has publicly stated in various forums in recent months, filers of Forms 1094-B, 1095-B, 1094-C and 1095-C that miss the June 30, 2016, due date will not generally be assessed late filing penalties under section 6721 if the reporting entity has made legitimate efforts to register with the AIR system and to file its information returns, and it continues to make such efforts and completes the process as soon as possible.   In addition, consistent with existing information reporting rules, filers that are assessed penalties may still meet the criteria for a reasonable cause waiver from the penalties.

If you are not an electronic filer and you missed the May 31, 2016, paper filing deadline for ACA information returns, you should also complete the filing of your paper returns as soon as possible.

Why the Latest ACA Repeal Attempt Actually Means Something

On Friday, President Obama vetoed the bill that would repeal significant parts of the ACA and defund Planned Parenthood for a year. On its face this just seems like another pointless repeal attempt by the GOP, (as they have tallied over 50 attempts at this point). However, this one needs to have an asterisk beside it.

The reason this one is different is because it actually made it to President Obama's desk to get vetoed.  Why that means something is because most prognosticators believe that Republicans will keep the House and the Senate in the 2016 election so only the White House is really up for grabs.  While Republicans probably won’t have a veto-proof majority in 2017 (just like they don’t now), this proves they don’t need one to get at least a version of repeal to the president’s desk.  So if the president in 2017 is Trump, Rubio, Cruz, Bush (insert name here), then they have proven they will be able to get a bill to repeal significant portions of the law through budget reconciliation to their desk.

If you aren’t familiar with budget reconciliation or the politics of the situation the below article does a good job explaining it. In summary, it only requires majority approval in the Senate, and it allows the majority to avoid a filibuster to get it through. Interestingly enough, budget reconciliation was actually the same way the Democrats were able to get the ACA through when it was originally signed into law back in 2010.

 

When Paul Ryan was asked why there was no alternative to the ACA provided with this bill, his answer was "Just wait".  He now has his committee chairmen working on an alternative option.  This was just a dress rehearsal, and it was successful for the GOP. They are hoping for a final performance in early 2017 that would be a huge blow to the ACA as we know it today.  

 

http://thehill.com/policy/healthcare/264980-house-passes-obamacare-repeal-sending-measure-to-obamas-desk