FAQ – Health Care Reform Shared Responsibility Rules
Based on questions posed during 3.21.13 webinar

1. Does membership in an industry association cause any issue with the aggregation rules to determine applicable large employer status?
No. An employer's common ownership with other entities meeting certain percentage thresholds is required (generally 80% common ownership). Caution - There may be attribution of ownership between family members, estate planning trusts, and other entities.

2. Does buying health care coverage through an association plan result in aggregation of the purchasing employers for determining applicable large employer status?
No. As with question 1, there has to be a commonality of ownership among employers to have aggregation.

3. Does the 60% contribution requirement apply to dependent's costs?
The 60% number relates to the minimum value requirement. A minimum value plan must cover an actuarially determined amount of at least 60% of allowable benefits.

4. May we use a combination of the affordable plan safe harbors? We don't have to choose one specific safe harbor, correct?
Yes. The regulations permit an employer to apply one OR MORE of the safe harbors as they choose.

5. If using the W-2 safe harbor, which year's W-2 applies (e.g., W-2 from the prior year)?
The W-2 safe harbor is applicable to the year's current wages; thus, the W-2 safe harbor for the 2014 Calendar Year would be based on Box 1 of the W-2 applicable to the 2014 W-2 wages. This may result in a practical issue if the employer desires to establish employee contributions for 2014 open enrollment. As of October 2013 (the beginning of what might be the Administrative Period used for determining who to offer coverage), an employer would only have the 2012 W-2 information to utilize. Therefore, one of the other two safe harbors may be more useful for planning purposes for prospective years.

6a. Question on part-time employees. We offer coverage to our full-time employees - they pay 10% of the premiums - not anywhere close to 9.5% of their income. However, our part-time employees that work 30 hours or more but less than full-time are also offered coverage, but they pay 100% of the premium. Did the presenters just say that was OK?

6b. Could we have a minimum value plan that we offer to part time employees who work more than 30 hours in which the premium would be paid 100% by the employee for this group only?
An employee who averages more than 30 hours per week will be considered a "Full-Time Employee" for purposes of these rules. If the Part-Time Employee averages less than 30 hours per week, as determined by applying the measurement period to them as a "variable hour employee," then the employer has no obligation to offer health coverage under a minimum value affordable plan.
If the employer offers a minimum value affordable plan to an employee, then the employer could also offer an additional plan (which would not necessarily meet the minimum value or affordable coverage requirements) that would require the employee to pay 100% of the premium.

7. I'm confused on the 125 comments. If an employer uses the same rate for all employees (i.e., not based on % of compensation), is there a discrimination test issue?
There are non-discrimination rules with respect to eligibility and benefits for a 125 plan. Simplified, benefits non-discrimination is analyzed by dividing the value of benefits provided the employees through a 125 plan by the employee's compensation. Much like a 401(k) plan test, the average for the highly compensated participants is compared to the non-highly compensated participants. Disregarding all other benefits the employee may elect under the 125 plan and just focusing on the health care benefits, using the "same rate" (i.e. the same contribution amount) for each participant will result mathematically in the average for highly compensated employees being less than for the non-highlys. That is a good outcome; it demonstrates that the benefits do not favor the highlys.
Practically speaking, however, the "typical" 125 plan will have multiple benefits available and some eligible employees will elect "zero," so the averages and the ultimate comparison is more complicated. Health care contributions are just one variable in a more complicated testing setting.

8. With respect to different categories of employees, can you treat separate unions differently (e.g. teachers vs. classified workers custodians, bus drivers, cafeteria workers) or should all union employees be viewed in the same category?
Yes, different union groups with separate contracts can be treated separately for the measurement / administrative and stability periods.

9. An example gave the "Administrative Period" as October 1 to December 31 - isn't that a 91 day administrative period?
The government regulations provide for this 3 month period. While the applicable statute requires that the eligibility period not be more than 90 days, the government appears to be providing some "wiggle room" or rounding for meeting this eligibility standard. In fairness, most of us would probably think that 3 months is the equivalent of 90 days. The government indicated that they were trying to create regulations that enforced the law, but conformed, to some extent, to administrative practices of employers. Enrollments and commencing benefits as of the beginning of a month are fairly typical.

10. What is the best measurement of time for an employer who has a high turnover rate for employees working between 30-40 hours?
Employees who the employer knows will work more than 30 hours per week will be "full-time" employees to whom the employer will have to offer coverage. The regulations specifically decline to give any allowance for high turnover positions. The measurement period is only applicable to the variable hour employee, i.e. the employee who the employer is unsure will work on average more than 30 hours per week. An employer may wish to reduce high turnover positions to less than 30 hours per week average to apply the variable hour employee measurement period.

11. If an employee has gone to full-time for a measurement period and then goes back to part-time hours then resigns or becomes terminated. Since they received full-time benefits at one time, will they be eligible for COBRA?
If the employee is currently receiving health benefits, and then, either terminates or loses eligibility due to falling below 30 hours per week average as a variable hour employee, the employee would have COBRA rights arising out of the termination of coverage. If the employee is offered health benefits, and declines, and then becomes ineligible, there would be no COBRA rights.

12. If our seasonal employees come and go based on several peak periods, do we use the 30/130 hour measure over a 12 month period for coverage determination?
Assuming the employer has adopted a 12 month measurement period, and the seasonal employee does not have a 26 week break in service (no hours worked or entitled to be paid) or the "Rule of Parity," (a break of 4 weeks or more that exceeds the employees previous term of service) applies and the break is not of sufficient duration to result in that employee's pre-termination service being disregarded and causing the "seasonal" employee to be treated as a new employee, then you would determine their full-time employee status based on the results during the applicable measurement period.
Note - the measurement period counts actual hours worked for hourly employees. The 30 hour per week and 130 hours per month standards are used to determine Full-Time Employee status.

13. Please clarify that the 6 month 1st Measurement Period in your example is just that, an example. This period could actually be 12 months if employer chooses.
The 6 month measurement period in the Time Line examples was meant to illustrate the available transition that permits the first measurement period in 2013 to be at least 6 months and result in a stability period of 12 months.

14. How do we handle elected officials?
An elected official would be treated as a new employee under these rules when first elected. Assuming the elected official was reasonably determined to be a full-time employee, the employer would have 3 months to offer coverage. An employer may extend health benefits to employees who are not Full-Time Employees in its discretion.

15. If an employee is offered coverage after the end of their initial measurement period, doesn't the 30 day limit affect when their coverage must begin? I seem to hear you say that we only have to worry about offering coverage, not when coverage must begin. Please clarify.
The employer has to offer coverage to the Full Time employee within the 90 day period and there has to be the opportunity for that coverage to commence immediately thereafter, but coverage commencement can be conditioned on the employee completing and submitting enrollment forms. For example, if the employer imposes a 90 day eligibility period, provides enrollment forms on the 75th day with an explanation that coverage commences only when the forms are submitted (but as early as that 91st day), if the employee delays submitting forms until the 120th day, coverage can commence on that 120th day. That the coverage commences more than 90 days after DOH does not mean the employer has not properly offered coverage within the requisite 90 days. Again, it is the offer of coverage that may commence immediately after the 90 day eligibility period which is determinative.

16. Can we allow an employee to sign a waiver for health coverage so that the employee can work more than 30 hours/week?
If the employee is a full-time employee, the employer must offer coverage. Disregard the exception that the government created that allows the employer to exclude up to 5% of the full-time workforce. So, a waiver by that employee who works more than 30 hours per week and who is considered Full-Time will not protect the employer from the penalty tax for failure to offer coverage.
Caution: There is an esoteric legal question whether the employer could ask for such a waiver - would asking imply that there really is no offer of coverage?

17. How do I treat seasonal employees that work more than 1 job for us throughout the year? i.e. they work 1 job through the school year, then they work a summer camp and then go back to the other job once school starts. As long as they stay under 30 hours, I do not have to offer coverage, correct?
This question really presents the "variable hour employee" situation. As noted, the government is struggling with how to define "Seasonal employee." With facts as presented, if the variable hour employee does not work on average more than 30 hours per week during the applicable measurement period, coverage will not have to be offered.

18. What about employers who contribute on behalf of employees to Taft Hartley multiemployer health and welfare plans?
An Applicable Large Employer will not be treated as failing to offer health coverage with respect to a full-time employee (and the employee's dependents) if (1) the employer is required to make a contribution to a multiemployer plan with respect to the employee pursuant to a collective bargaining agreement or participation agreement (2) coverage is offered to the employee (and the employee's dependents), and (3) the coverage is affordable and provides minimum value.
The employer may wish to seek confirmation from the multiemployer plan that the coverage is affordable and provides minimum value, but as a practical matter, most multiemployer health and welfare plans will likely satisfy each of these tests.

19. If an employee averaged 30 hours per week during the measurement period, but cuts back to one day a week, do we still have to offer health coverage during the stability period? What if the employee is working more than 30 hours per week with another employer, but our health benefits are better?
Technically, the employer's obligation to extend an offer for health coverage would remain throughout the applicable stability period. In the fact pattern in which the employee works for another employer with lesser benefits illustrates the fact that an employee may be a full time employee for purposes of these rules for more than one employer.

20. What is the effect this will have on our intern/co-op programs?
The employer may possibly define the interns as "seasonal employees" using a reasonable employer-determined definition. The employer would then determine whether the intern was reasonably likely to satisfy the 30 hour per week average, taking into account that the internship will likely end, and averaging the hours over the entire measurement period. If it is unable to make a determination, the intern's hours would be measured over the Initial Measurement Period.
If the intern does not meet a reasonable definition of "seasonal employee" the intern would be treated as a variable hour employee. In 2015, the employer could not assume the intern's employment would terminate prior to the initial measurement period.

 

If you have additional questions, please contact:

Bruce Davis, Principal, Leader of Findley Davies' Health/Group Benefits Consulting Practice, 419-327-4133, This email address is being protected from spambots. You need JavaScript enabled to view it.
Scott Hamner, Principal, Head of Technical Resources, 419-327-4128, This email address is being protected from spambots. You need JavaScript enabled to view it.
Scott Newsom, Partner, Shumaker, Loop & Kendrick, LLP, 419-321-1438, This email address is being protected from spambots. You need JavaScript enabled to view it.