Employer Mandate Delayed. Many Questions Remain

Employer Play-or-Pay Mandate Penalties and Certain Employer Reporting Requirements Delayed Until 2015

Posted: 11 Jul 2013 09:27 AM PDT

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Treasury Says No Impact on Any Other Provisions of the PPACA in 2014

The Obama Administration unexpectedly announced on July 2 that employers will be provided an additional year, until 2015, before any penalties are assessed under the employer play-or-pay mandate in the Patient Protection and Affordable Care Act (PPACA) (i.e., both the $2,000- and $3,000-per-year employer penalties are delayed until 2015).

In addition, the mandatory employer and insurer reporting requirements (including identification of full-time employees and their months of coverage) under Internal Revenue Code (IRC) Sections 6055 and 6056 are also delayed for a year. Thus, employers will not incur penalties for failing to provide affordable, minimum-value health coverage to their full-time employees in 2014, nor will insurers or employers be required to comply with the extensive information reporting requirements under those code sections for the 2014 calendar year.

In an unusual fashion, the Obama Administration announced the delay only via postings on the Treasury Department and White House websites. Mark Mazur, assistant secretary for tax policy at the Treasury wrote in a blog post, “We have heard concerns about the complexity of the requirements and the need for more time to implement them effectively.” Mazur went on to write that “our actions today do not affect employees’ access to the premium tax credits available under the ACA (nor any other provision of the ACA).”

The Administration stated that the goals of the one-year delay are twofold. First, it will allow the government to consider ways to simplify the new reporting requirements, and second, it will provide time for employers to adapt health coverage and reporting systems. It is important to note that the delay also takes a controversial piece of the law off the table before the midterm congressional elections.

According to the Treasury, rules regarding the delay will be proposed this summer. Employers will be encouraged but not required to adopt and follow those reporting requirements in 2014. The full text of the announcement by the Treasury can be found at treasury.gov.

What Does This Mean?

Aside from the delay in employer reporting under IRC Sections 6055 and 6056, and the delay in the play-or-pay penalties, the Treasury says the delays will not affect employees’ access to the premium tax credits nor any other provision of the PPACA. Even if one accepts that statement at face value, employers need to begin considering the potential impact of the delay as we await details from the government that will provide answers to the following questions:

§ What is the practical impact of the delay in play-or-pay penalties on counting employee hours in 2014 (i.e., will employers be required to identify full-time employees in 2014 for any other reasons, aside from play-or-pay, such as inquiries from public health insurance exchanges)?

§ Will employers still need to distribute the mandatory notice to employees regarding public health insurance exchanges by October 1, 2013? If so, should that notice be modified to reflect the delay in the employer play-or-pay mandate? Similarly, what is the relevance of information in the government’s model notice regarding details of the employer’s group health plan in view of the delay in the play-or-pay mandate?

§ If employers will not be subject to the play-or-pay mandate in 2014, how will public health insurance exchanges determine eligibility for the premium tax credit (recalling that individuals are ineligible for the credit if they have been offered minimum essential coverage that is affordable and of minimum value)?

§ Will the public health insurance exchanges still be contacting employers in 2014 to verify employee information (in some cases) on employees’ full-time status and health coverage contributions (for purposes of the premium tax credit) — even though employers will not be subject to penalties under the play-or-pay mandate? If so, will the affordability and minimum value of employer coverage still need to be determined in 2014 for purposes of the premium tax credit if those same elements of the play-or-pay requirements are waived for employers in 2014?

§ How will the individual mandate be affected by the delay in the employer play-or-pay mandate? Will there now be political pressure to delay the individual mandate if the employer play-or-pay mandate has effectively been deferred to 2015?

Meanwhile, it seems relatively clear that other provisions of the PPACA that become effective in 2014 can proceed without being affected by the one-year delay in the employer play-or-pay mandate. For example, the annual distribution of Summaries of Benefits and Coverage (SBCs), compliance with the new out-of-pocket maximum limits and 90-day waiting period limit on group health plans, as well as the annual $63-per-covered-life, transitional-reinsurance fee do not appear to be affected by the delay.

Employers should anticipate questions and concerns from stakeholders about this latest development. Employees, vendors, line supervisors, senior management, board members and others will all react to media coverage of the delay, and some confusion should be expected. Employers should begin to consider some thoughtful messaging about this development even as we await details from the Treasury.

Conclusion

The main elements of the PPACA were designed to take effect in 2014 in a sort of health care reform grand opening. The announcement of the delay by the Treasury on July 2 appears to set the stage for a “soft opening” for health care reform in 2014. For employers, most of the implications will flow from the one-year delay in enforcement of the play-or-pay penalties and the delay in information reporting under IRC Sections 6055 and 6056. While nothing in this latest bit of drama suggests that health care reform is going away, further guidance will be needed from the government to understand the full implications of the delay for employers. That guidance is promised by the Treasury this summer, and Towers Watson will be following those developments closely in order to assist plan sponsors through this period.