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Virginia Donohue

Virginia Donohue
Pet Camp
San Francisco, CA

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Healthcare reform FAQ

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SMALL BUSINESS TAX CREDIT

expand Qualifying requirements for the tax credit

expand Calculating the tax credit

expand Calculating number of employees, average annual wages

expand How to claim the tax credit

expand HEALTH INSURANCE EXCHANGES

expand GRANDFATHERED PLANS

expand PREEXISTING CONDITION INSURANCE PLANS (FORMERLY HIGH-RISK POOLS)

expand PREEXISTING CONDITIONS

expand COVERAGE OPTIONS FOR THE SELF-EMPLOYED

expand SHARED RESPONSIBILITY REQUIREMENTS

expand AFFORDABILITY AND CONTROLLING COSTS

expand ADDITIONAL OPTIONS: MULTI-STATE PLANS, CO-OPS AND MORE

expand ADDITIONAL ISSUES

WHERE CAN I GET ADDITIONAL INFORMATION?

Download FAQ (PDF)

Last updated: January 25, 2012

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QUALIFYING REQUIREMENTS FOR THE TAX CREDIT

Who is eligible for the tax credit?

Small employers that provide healthcare coverage are eligible (a “qualified employer”) if:

They have fewer than 25 full-time equivalent employees (FTEs)* for the tax year

The average annual wages paid are less than $50,000** per FTE

The employer pays at least 50% of the premium cost under a “qualified arrangement”

* FTEs may be calculated in any of three ways to maximize the tax credit. See “How is the number of employees determined for eligibility?” below.

** Wage limits will be indexed to the Consumer Price Index for Urban Consumers (CPI-U) for tax years beginning in 2014.

A “qualified arrangement” means:
The employer pays 50% or more of the cost of the employee-only premium for coverage through a state-licensed company for traditional health insurance. This contribution requirement also applies to add-on coverage including vision, dental and other limited-scope coverage.

 

Is a tax-exempt organization a qualified employer?

Yes. The same definition of qualified employer applies, but the amount of the tax credit is lower and special rules apply.

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CALCULATING THE TAX CREDIT

How much is the tax credit?

There is a sliding-scale tax credit of up to 35% of the employer’s eligible premium expenses for tax years 2010–2013. Employers with 10 or fewer full-time employees, paying annual average wages of $25,000 or less, qualify for the maximum credit. 

Beginning in tax year 2014, the maximum tax credit increases to 50% of premium expenses and coverage must be purchased from a state health insurance exchange. This tax credit is available for a total of any two years.

For tax-exempt employers, the same employee and wage requirements apply, but the maximum tax credit is 25% of eligible premium expenses for tax years 2010 – 2013, increasing to 35% in 2014.

The amount of the tax credit cannot exceed the total income and Medicare tax the employer is required to withhold from employees’ annual wages, plus the employer’s share of the Medicare tax.

 

What expenses are counted in calculating the credit?

Only the employer contribution to the premium amount counts as an eligible expense, subject to the limit described below. If an employer pays 80% of the premium, then 80% of the premium expense is counted. The premium contribution counted includes traditional health insurance, vision, dental and other limited-scope coverage.

An employer’s eligible premium contribution is capped at the average cost of health insurance for the small group market in their state (or an area of the state). If an employer pays 80% of the premium, then the amount that counts is limited to the same portion—80% of the average cost of health insurance in the state. This provision is designed to avoid an incentive to choose a high-cost plan.

Any premium paid through a salary reduction arrangement under a section 125 cafeteria plan is not counted in determining the premium expense.

Note: Premium contributions for owners and family members are not eligible expenses for the tax credit.

 

How is the average premium for the small group market in the state determined?

The Department of Health and Human Services (HHS) will determine the rate for a state (or within a state) and the information will be published on the IRS website (IRS.gov). The 2011 rates are available in an easy-to-read table.

Example: Calculating the credit for an employer (non–tax-exempt)
For tax year 2010, an employer has 9 FTEs with average annual wages of $23,000 per employee. The employer pays $72,000 in premiums for those employees (which does not exceed the benchmark premium) and meets the requirements for the credit. This employer’s credit for 2010 equals $25,000 (35% X $72,000).

Example: Calculating the credit for a tax-exempt employer
For tax year 2010, a tax-exempt employer has 9 FTEs with average annual wages of $23,000 per FTE. The employer pays $72,000 in premiums for those employees (which does not exceed the benchmark premium) and meets the requirements for the credit. The total for the employer’s income tax and Medicare tax withholding, plus the employer’s share of the Medicare tax withholding, equals $30,000.

Here’s how the credit is calculated:
1) The initial amount of the credit is determined before any reduction: (25% X $72,000) = $18,000
2) The employer’s withholding and Medicare taxes are $30,000
3) Total tax credit for 2010 is $18,000

 

How soon can the tax credit be taken?

Eligible small businesses can claim the credit beginning in tax year 2010. The credit may be included in determining estimated tax payments for the year in which the credit applies, following regular estimated tax rules.

 

Do premiums paid by an employer in 2010, before healthcare reform was enacted, count toward the tax credit?

Yes. All qualified premium expenses paid beginning January 1, 2010 may be counted for that tax year.

 

Does the state tax credit or subsidy I receive reduce my federal tax credit?

According to the premium tax credit FAQ provided by the IRS: Although state tax credits and payments made directly to an employer generally do not reduce an employer’s otherwise applicable federal health care tax credit, and although state direct payments are generally treated as paid on behalf of an employer, the federal health care tax credit cannot exceed the amount of the employer’s net premium payments. In the case of a state tax credit for an employer or a state subsidy paid directly to an employer, the employer’s net premium payments are calculated by subtracting the state tax credit or subsidy from the employer’s actual premium payments. In the case of a state direct payment, the employer’s net premium payments are the employer’s actual premium payments.

 

Will there be any transition relief for tax years beginning in 2010 to make it easier to meet the requirements for a qualifying arrangement?

Yes. The IRS and Treasury have issued formal guidance on this. To begin with, under transition rules:

As long as an employer pays at least 50% of the premium for each enrolled employee, s/he will still qualify for a tax credit even if s/he doesn’t pay a uniform percentage of the premium for each employee.

The 50% employer premium contribution requirement applies to an employee-only premium rate.
For those with family or employee-plus-one coverage, the employer contribution is met if the contribution is equal to 50% of the employee-only rate, not 50% of broader coverage.

 

How can non-profits take advantage of this resource?

Tax-exempt organizations can claim the small business healthcare tax credit on a revised Form 990-T. The Form 990-T is currently used by tax-exempt organizations to report and pay the tax on unrelated business income. The 990-T will be revised for the 2011 filing season to enable eligible tax-exempt organizations—even those that owe no tax on unrelated business income—to also claim the small business healthcare tax credit, which for them is refundable.

 

Can non-profits take a health insurance credit that is larger than their payroll taxes?

No. The IRS has now clarified that non-profits are taking the credit against their payroll taxes, clearing up any confusion on whether non-profits qualified for this credit before. It’s important to note that non-profits cannot take a credit greater than their payroll taxes. Line 25 of the form informs tax-exempt organizations on how to determine the impact of this requirement.

 

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CALCULATING NUMBER OF EMPLOYEES, AVERAGE ANNUAL WAGES

How is the number of employees determined for eligibility?

Only employers with fewer than 25 FTEs are eligible for the tax credit; the full credit goes to employers with 10 or fewer full-time equivalent employees (FTEs).

Employers may choose to count hours in one of three different ways, to maximize the credit and minimize their bookkeeping burden. These include:

Actual hours of service: Divide the total hours for which the employer pays wages to the employees during a taxable year by 2,080. No more than 2,080 hours (equivalent to a 40-hour work week) should be counted for any employee.

Estimate hours based on total days or service

Estimate hours based on total weeks of service

Example: For the 2010 tax year, an employer pays 5 employees wages for 2,080 hours each, 3 employees wages for 1,040 hours each, and 1 employee wages for 2,300 hours.

The employer’s FTEs would be calculated as follows:
1) Total hours (not exceeding 2,080 per employee) is the sum of:

a. 10,400 hours for the 5 employees paid for 2,080 hours each (5 X 2,080)
b. 3,120 hours for the 3 employees paid for 1,040 hours each (3 X 1,040)
c. 2,080 hours for the 1 employee paid for 2,300 hours (hours limited to 2,080)

Total: 15,600 hours

2) FTEs: 7 (15,600 divided by 2,080) = 7.5, rounded down to the next-lowest whole number).

 

Can an employer with 25 or more employees qualify for the tax credit if some of its employees are part-time?

Yes. The limit on the number of employees applies only to FTEs. Full-time employees are those who work 30 hours or more; part-time employees work less than 30 hours per week, figured on a monthly basis. This takes weekly fluctuations into account.

Example: An employer with 46 half-time employees has 23 FTEs and may qualify for the credit.

 

Are seasonal workers counted in determining FTEs and average annual wages?

Generally, no. They are only counted for FTE equivalents and average annual wages if they work for the employer more than 120 days during the tax year.

 

Does the owner of a business count as an employee for purposes of the tax credit if s/he also provides services? Do family members of a business owner who work for the company count as employees?

An owner is not counted if s/he is a sole proprietor, a partner in a partnership, a shareholder owning more than 2% of an S corporation or an owner of more than 5% of other businesses.

Family members are not counted if they are children or grandchildren; siblings or step-siblings; parents or grandparents; step-parents; nieces or nephews; aunts or uncles; sons- or daughters-in-law; fathers- or mothers-in-law; or brothers- or sisters-in-law.

This means their hours and wages do not apply to the FTE count, the amount of average annual wages or the amount of premium costs paid.

 

How are annual average wages determined?

Average annual wages are calculated by dividing total wages paid by the employer to employees during a taxable year (box 5 of W-2 wages) by the number of FTEs for the year. The result is rounded down to the nearest $1,000.

Example: For the tax year 2010, an employer pays $224,000 in wages and has 10 FTEs.

The employer’s annual average wage would be: $22,000 ($224,000 divided by 10 = $22,400, rounded down to the nearest $1,000).

 

How is the tax credit calculated for employers with more than 10 FTEs and/or average annual wages over $25,000?

As long as the employer has fewer than 25 FTEs and pays annual average wages under $50,000 per FTE (and meets other specified requirements) they are eligible for a tax credit on a sliding scale basis. A standard formula is used to reduce the full tax credit.

If there are more than 10 FTEs: The reduction is determined by multiplying the full credit amount by a fraction: the numerator is the number of FTEs over 10 and the denominator is 15.

If average annual wages exceed $25,000: The reduction is determined by multiplying the full credit amount by a fraction: the numerator is the amount by which average annual wages exceed $25,000 and the denominator is $25,000.

The amount calculated using the formula above is then subtracted from the full tax credit to determine the final credit the employer qualifies for. If the employer has both more than 10 FTEs and average annual wages over $25,000, the credit is determined by adding both reduction amounts together and subtracting that sum from the full credit amount.

Example: Calculating the sliding-scale tax credit
For the 2010 tax year, a qualified employer has 12 FTEs and average annual wages of $30,000. The employer pays $96,000 in healthcare premiums for those employees (which does not exceed the benchmark premium) and otherwise meets the requirements for the credit. The credit is calculated as follows:

1. Initial amount of credit determined before any reduction: (35% X $96,000) = $33,600
2. Credit reduction for FTEs in excess of 10: ($33,600 X 2/15) = $4,480
3. Credit reduction for average annual wages over $25,000: ($33,600 X $5,000/$25,000) = $6,720
4. Total credit reduction: ($4,480 + $6,720) = $11,200
5. Total 2010 tax credit: ($33,600 - $11,200) = $22,400.

To find out what percentage of the tax credit you will most likely qualify for given your number of employees and their average annual wages, see this chart provided by the Congressional Research Service.

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HOW TO CLAIM THE TAX CREDIT

How does an employer claim the tax credit?

The credit is taken on the annual tax return. Simply fill out Form 8941. For tax-exempt organizations, see “How can non-profits take advantage of this resource?

 

Does taking the tax credit affect an employer’s deduction for health insurance premiums?

Yes. While an employer is still able to claim the deduction in addition to receiving the tax credit, the amount taken for the tax credit must be subtracted from the deduction.

 

May an employer reduce employment tax payments during the year in anticipation of the tax credit?

No. The credit applies against income tax, not employment tax (i.e. withheld income tax, social security tax, and Medicare tax).

 

Can an employer (other than a tax-exempt employer) claim the credit if it has no taxable income for the year?

Generally, no. Except in the case of a tax-exempt employer, the credit for a year offsets only an employer’s actual income tax liability (or alternative minimum tax liability) for the year. However, under the general business credit rules as amended the Small Business Jobs Act of 2010, an unused small business healthcare tax credit for tax year 2010 may be carried back five years or forward up to 20 years. For all other years, normal carryback and carry forward rules apply. More information may be found here: Form 3800 instructions.

 

Can a tax-exempt employer claim the tax credit if it has no taxable income for the year?

Yes. The tax credit is a refundable credit and the employer is eligible for a refund as long as it’s not more than the income tax withholding and Medicare tax liability.

 

Can the tax credit be counted in determining estimated tax payment for a year?

Yes. The credit may be included in determining estimated tax payments for the year in which the credit applies, following regular estimated tax rules.

 

Can a small employer claim the credit after they have already filed their taxes?

Yes, after the taxes have been filed a small business owner can file a correction to claim the credit. If you failed to claim the credit on your 2010 taxes but are eligible, you can still get the credit! Simply fill out an amended return, Form 1040x, and attach the Form 8941 to complete the process. For more information, contact your local IRS office.

 

If a small business files an extension on their federal income taxes, can they still claim the credit?

Yes, a credit can still be claimed on an extension.

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HEALTH INSURANCE EXCHANGES

When are health insurance exchanges going to be available?

The health insurance exchanges will be available beginning January 1, 2014. (Some states are already working to make them available earlier.) If HHS determines before 2013 that a state is not going to have an operational exchange by 2014, the HHS Secretary will step in and establish the exchange in that state.

Beginning in 2017, states will have the flexibility (for up to 5 years) to make changes related to the exchange, qualified health plans, cost-sharing reductions, tax credits and individual and employer responsibility requirements.

 

What’s the difference between the exchange for individuals and SHOP for small businesses?

The law provides for a separate exchange for small businesses (Small Business Health Options Program, SHOP) and one for individuals. The small group market is defined as employers with 1-100 employees. However, a state may limit small group participation to employers with 50 or fewer workers from 2014 through 2016. Beginning in 2017, all employers with 100 or fewer employers may participate in the exchange. States may allow businesses with more than 100 employees to participate after 2017. States can also choose to combine the individual and small business exchanges—an option with many proponents, because expanding the pool would lead to more competition among insurers, which would mean more choice and should result in better pricing for consumers.

 

Is it true that there will be a number of benefit packages offered through the exchange and that they will have minimum coverage requirements? What are they?

Yes. The exchange will provide a choice of four categories of insurance packages, each with essential minimum benefits, plus “catastrophic only” insurance for select populations. The law allows a variety of products and benefits to be sold within those four levels as long as they meet the minimum standards of coverage. This will allow easier comparison among plans. The employer will decide what level of coverage to offer, and employees may pick any plan offered within the exchange at that level.

The law established broad benefit categories of typical employer coverage, including ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, rehabilitative services and devices, laboratory services, preventive and wellness services and chronic disease management, and pediatric services (including oral and vision care). The HHS Secretary will define specific services that must be covered within these categories. This provision is designed to make sure coverage is comprehensive.

The four coverage levels are based on the specified percentage of costs the plan will cover:

Bronze = 60%

Silver = 70%

Gold = 80%

Platinum = 90%

Also, if an insurer offers a qualified health plan, they must also offer a child-only plan at the same level of coverage.

The options within the four coverage levels must also limit cost-sharing:

Out-of-pocket costs can’t exceed Health Spending Account (HSA) limits.

Annual deductibles are limited to $2,000 for individuals and $4,000 for families in the small group market. The limit is indexed to the percentage increase in average per capita premiums.

No cost-sharing for preventive services.

No annual or lifetime caps on the dollar value of services.

 

Are there new tools or information sources for small businesses and individuals to explain options and help with decision-making? For example, to compare benefits and prices?

Yes. Launched on July 1, 2010, www.healthcare.gov provides information about coverage options in each state, including eligibility, availability, premium rates, cost-sharing, and how much is spent on medical care vs. administrative costs. The site also helps people determine whether they’re eligible for a variety of programs, including existing or new Preexisting Condition Insurance Plans, Medicaid, Medicare and CHIP.

In addition to educational content and details on small business tax credits and the early retiree reinsurance program, the site provides information that will enable consumers to evaluate their options in the private market (they are able to search for options by zip code, for example). Private health plan information includes:

Plan names and types (e.g. HMO, PPO)

Summary of services provided

List of network providers

List of prescription drugs covered, if available

Links to plan websites

Consumer contact information to learn more or enroll

The site provides links to existing Medicare websites and call centers.

The following are available on the site for Medicaid and CHIP:

Eligibility information

Summary of services available in states through core programs and waiver programs

Links and contact information to get more details on benefits, determine eligibility on an individual basis, and enroll

Consumers are able to get the following information on high-risk pools in their states:

Eligibility criteria for enrolling

Name and contact information to determine individual eligibility and enroll

Coverage limitations

The website also provides detailed pricing and benefit information on private insurance options. It shows cost-sharing per service, deductibles and premiums and features a tool to help compare plans.

It also has detailed information on services covered by the state Medicaid and CHIP programs, and on the federal and state Preexisting Condition Insurance Plans, including premiums and cost-sharing.

States have also received funding to establish health insurance consumer assistance offices or ombudsman programs. This resource is available to answer questions and handle complaints.

The HHS secretary is developing procedures for the exchanges to help consumers. For example:

Each exchange will have an electronic calculator to help consumers figure out plan costs, including the impact of tax credits and subsidies, if eligible.

The exchange will help determine eligibility for coverage and tax credits, whether an individual is exempt from the requirement to purchase coverage and whether their employer coverage is deemed “unaffordable.”

Each exchange will also maintain a call center for customer service.

Plans will be required to provide an explanation of benefits and policies using a standard format, which will help make comparisons easier.

 

What happens if my state doesn’t establish an exchange by 2014?

The HHS Secretary will step in. If the Secretary determines before 2013 that a state is not going to have an operational exchange by 2014 or implement the required standards, HHS will establish the exchange and implement the standards in the state.

 

How will administrative complexity be reduced for employers and individuals through the health insurance exchanges?

There are a number of provisions designed to reduce administrative complexity. These include:

The exchange will establish procedures to enroll small businesses and individuals; one simple enrollment form will be used.

The exchange will offer four levels of benefit packages, and require insurers to describe benefits and policies in a streamlined format that allows for easy comparison.

Individuals will be able to apply for coverage through the exchange, and will be informed if they qualify for Medicaid, CHIP or any other state or local public health programs through one state-sponsored website. The exchange will determine whether an individual qualifies for a tax credit and/or subsidy to reduce cost sharing.

HHS has created a single website, www.healthcare.gov, where small businesses and individuals can find detailed information about coverage options in their state.

There are also a number of new requirements for insurers on streamlined operating rules to simplify elements of health insurance administration such as eligibility verification, service authorizations, claims status, payment procedures, and referrals. These changes should reduce waste, administrative cost and hassle and should be fully implemented by January 1, 2013. 
For more details, see this healthcare reform implementation timeline provided by www.healthcare.gov.

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GRANDFATHERED PLANS

What makes a plan “grandfathered?”

One important aspect of healthcare reform allows employers who like their current coverage to keep it, as long as the plan was in existence before reform was enacted on March 23, 2010. These plans are often referred to as “grandfathered” plans.

 

Keeping a health plan’s grandfathered status

Small businesses are allowed to keep their grandfathered plans as long as they don’t make any significant changes in coverage. If any of the following changes are made, the plan can no longer keep its grandfathered status—which means that all the new consumer protections introduced with reform will apply.

Increase medical costs to employees. An increase in cost-sharing above medical inflation (usually 4-5% annually) plus 15% (changes in premiums are not taken into account):

1) Raises copayment charges more than $5 (adjusted annually for medical inflation) or a percentage equal to medical inflation plus 15%

2) Raises deductibles (an allowable range is 19-20% from 2010 to 2011; 23-25% from 2011 to 2012); grandfathered plans can only increase these deductibles by a percentage equal to medical inflation plus 15%

3) Increases coinsurance charges; for example, if coinsurance for a hospital stay is 20% (usually requires the patient to pay a fixed percentage of the charge), it cannot be increased to 25%

Reduces the employer contribution. Many small business owners pay a portion of their employee’s insurance premium and this is usually deducted from workers’ paychecks. If an employer decreases the percent of premiums it pays by more than 5%, the plan loses its grandfathered status.

Significantly cuts or reduces benefits. For example, if coverage for a specific condition, like diabetes, HIV/AIDS or cystic fibrosis is reduced or eliminated.

Adding or tightening an annual limit. As of 2010, annual limits are restricted and will be phased out. To keep grandfathered status, an annual dollar limit may not be made more restrictive; if the plan had no annual dollar limit on March 23, 2010, a new one can’t be added. There’s one exception: If there was a lifetime cap, it could become the annual dollar limit, so long as it is at least as high as the lifetime cap. Annual limits requirements are as follows:

Plan years: Sept. 23, 2010 to Sept. 23, 2011: not less than $750,000

2011-2012, not less than $1.25 million

2012-2013, not less than $2 million

The limits apply only to essential benefits, not yet defined.

 

Loss of grandfathered status

If an employer inadvertently triggers the loss of grandfathered status by violating one of the above rules, s/he may request a delay and make any necessary changes to coverage in order to retain the status.

 

Reforms that DON’T apply to grandfathered plans

The new law exempts grandfathered plans from certain requirements:

Preventive health coverage. Group health plans and health insurance issuers offering group or individual coverage must cover certain preventive health services (mammograms, colonoscopies, etc.) without passing the cost on to consumers.

Patient protections. The following rules offer additional safeguards for patients and apply to group health plans and health insurance providers offering group or individual coverage:

Plans that require designation of a participating primary care provider must allow each participant, beneficiary and enrollee to select any available participating primary care provider (including pediatricians for children).

No preauthorization or increased cost-sharing requirements for emergency services (in or out of network).

Obstetrical and gynecological care offered through the plan may not require preauthorization or referral of a participating primary care provider for such services.

Restrictions on insurance premiums. Plans may not charge discriminatory premiums for health insurance in the individual or group market, and may only differ by individual or family coverage, rating area and age and tobacco use, subject to certain restrictions.

Guaranteed issue and renewal of coverage. Health insurance providers offering coverage in the individual or group market in a state must accept every employer and individual in the state that applies for coverage and must renew or continue the coverage at the option of the plan sponsor or the individual.

Nondiscrimination rules. New rules protect consumers from discrimination:

Fully insured plans must satisfy the requirements of IRC section 105(h)(2) that requires a plan to not discriminate in favor of highly compensated individuals when considering eligibility and for the benefits provided under the plan.

Plans may not establish eligibility or continued eligibility rules based on health status-related factors and wellness programs must meet nondiscrimination requirements.

Group health plans and health insurance issuers offering group or individual coverage can’t discriminate against any provider operating within their scope of practice. However, this provision doesn’t require a plan to contract with any willing provider or prevent tiered networks. Individuals cannot be discriminated against based on whether they receive subsidies or cooperate in a Fair Labor Standards Act investigation.

Other provisions of the new law that don’t apply to grandfathered plans include quality of care reporting, effective appeals processes, limits on cost-sharing and coverage for clinical trials.

 

Reforms that DO apply to grandfathered plans

The following provisions apply to both grandfathered and new health plans under the healthcare reform law:

Extension of dependent coverage. Group health plans must provide coverage for adult dependent children up to the age of 26 if the child isn’t eligible to enroll in other employer-provided coverage (other than the grandfathered plan). Coverage provided to adult children is tax-free to employees.

Elimination of lifetime and annual limits. Plans may not establish lifetime caps on the dollar value of essential benefits and group health plans may not establish unreasonable annual limits. By 2014, all annual limits will be abolished.

Elimination of preexisting condition exclusions. Children cannot be denied coverage for preexisting conditions; this will apply to all enrollees in 2014.

Limits on rescissions. Coverage may not be rescinded except in the case of fraud or intentional misrepresentation of facts. Policyholders must be notified prior to cancellation.

Additionally, plans cannot require a waiting period of more than 90 days beginning in 2014, and on March 23, 2012, insurers and sponsors of self-funded plans must provide a summary of benefits to participants and applicants. Health insurance providers must report the percentage of premiums spent on non-claim expenses on an annual basis, and in 2011, insurers must provide rebates if more than the applicable percentage is spent on these costs.

 

Collectively bargained plans

Additionally, plans cannot require a waiting period of more than 90 days beginning in 2014, and on March 23, 2012, insurers and sponsors of self-funded plans must provide a summary of benefits to participants and applicants. Health insurance providers must report the percentage of premiums spent on non-claim expenses on an annual basis, and as of 2011, insurers must provide rebates if more than the applicable percentage is spent on these costs.

 

Employee notification

Employees must be notified by either their employer or the insurer that their plan will be grandfathered; any material distributed about the plan must also include whether or not the plan has grandfathered status and therefore isn’t subject to new consumer protections. If you buy your own insurance, you should ask your insurer if your plan is grandfathered.

Beginning in 2014, insurers must apply to grandfathered plans the same reforms that apply to all other individual and small group plans like those mentioned above.

 

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PREEXISTING CONDITION INSURANCE PLANS (FORMERLY HIGH-RISK POOLS)

How will the new Preexisting Condition Insurance Plan (formerly high-risk pool) work and when will it be available? What if my state already has one?

A temporary national Preexisting Condition Insurance Plan (formerly called the high-risk pool) was established July 1, 2010. Up to $5 billion in federal funding will be provided to cover those who have been denied coverage due to a preexisting condition and who have been uninsured for at least six months prior to applying for enrollment. The HHS Secretary has determined the benefits that must be included and what qualifies as a “preexisting condition.” This information can be found here, along with more details about the three plan types available through the federally-run PCIP program.

Each state has now made a decision about whether to establish its own Preexisting Condition Insurance Plan (PCIP). If a state already has a high-risk pool in place, it may combine it with its new PCIP or operate them separately. Thirty-four states already had their own high-risk pool, but eligibility, benefits, premiums, subsidies and other parameters vary widely. Some states have elected to let HHS handle the creation of their Preexisting Condition Insurance Plan.

Twenty-seven states have decided to run their own Preexisting Condition Insurance Plan; HHS will run the plan in the other 23 states and the District of Colombia. To find out which 23 states HHS is operating the plan in, check healthcare.gov or see this map from www.PCIP.gov. The map also includes information about specific plans in the states operating their own pre-existing condition insurance programs. You can also check individual state websites (see directions below).

For information about your state’s PCIP, find the state Department of Insurance at http://www.naic.org/state_web_map.htm. Those interested in applying for coverage should gather copies of their medical records to demonstrate they have a preexisting condition (it must be one specified by the secretary or the state) and apply as soon as the state or federal government starts accepting applications. You will also need either proof of a denial of coverage or a letter from a physician stating you have a preexisting condition.

People already enrolled in a state risk pool will maintain their coverage and aren’t able to enroll in the new PCIP. The new federal funding will allow existing state plans to cover more people.

The Preexisting Condition Insurance Plan is a temporary solution and will end January 1, 2014, when the health insurance exchanges are in place. Procedures will be developed to transition PCIP members to the exchange with no gaps in coverage.

 

Will insurance through the new preexisting condition insurance plan (formerly high-risk pool) be more affordable than through existing plans?

The new national preexisting condition insurance plan (formerly high-risk pool) is already making coverage more affordable. On July 1, 2011, monthly premium rates for all three of the of the federally-run PCIP plans lowered significantly. These premiums may be 10%-40% less than those available through existing state preexisting condition insurance plans thanks to subsidies from the federal government and these new rating restrictions:

Premiums are set for a standard population, not one with higher risk; premiums can only be adjusted for age (limited to a 4-to-1 ratio), geographic area, and family composition. Cost-sharing is capped at HSA limits: $5,950 for individuals and $11,900 for families in 2010. Premium subsidies will also be available.

> Read about the preexisting condition insurance plan on PCIP.gov

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PREEXISTING CONDITIONS

How are preexisting conditions handled under healthcare reform?

Guaranteed issue—requiring insurers to take all applicants, including people with preexisting conditions—will eventually apply to everyone. Since September 2010, preexisting condition exclusions have been prohibited for children. For adults, the ban takes effect in 2014. Until then, individuals who have a preexisting condition and have been uninsured for 6 months may obtain coverage through either the new national risk pool or one in their state.

Since being implemented, restrictions have eased and premiums have been lowered in the states where the plan is federally administered. For more information, visit www.pcip.gov or see this state-by-state list of lower premiums available through the federal PCIP program since July 1, 2011.

 

How does the change in preexisting condition exclusions affect the coverage I offer my employees?

If you currently offer coverage, there is no change now in how preexisting conditions are handled, except for children: Preexisting condition exclusions are prohibited for children effective September 2010.

Beginning in 2014, qualified health plans will no longer be able to deny coverage or charge a different premium based on preexisting conditions, health status or claims history.

 

Will waiting periods still be allowed?

Effective January 1, 2014, waiting periods for group coverage will be limited to no more than 90 days. Waiting periods don’t apply to the individual market.

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COVERAGE OPTIONS FOR THE SELF-EMPLOYED

How does healthcare reform affect the self-employed?

The self-employed will have more affordable coverage options and may qualify for individual tax credits and subsidies on a sliding scale, based on income. Also, there are exceptions for the individual requirement penalty. Information on how specific provisions apply to the self-employed follows.

Preexisting Condition Insurance Plans
Immediate coverage is available through temporary state-based risk pools (Preexisting Condition Insurance Plans) established July 1, 2010. For further information on these plans, see Preexisting Condition Insurance Plans (Formerly High-Risk Pools).

Health insurance exchange
Individuals will be able to purchase coverage through the state’s health insurance exchange beginning in 2014. There will be four levels of benefit packages that differ by the percentage of costs the health plan covers, set at 60%, 70%, 80% or 90%. Under the exchange, plans must accept all applicants; there are limits on out-of-pocket costs (deductibles can’t exceed $2,000 for individuals and $4,000 for families); and there are no annual limits or lifetime caps on the dollar value of care.

Individuals and families will be eligible for premium and cost-sharing reduction assistance on a sliding scale for those with incomes of up to 400% of the federal poverty level ($43,000 for an individual and $88,000 for a family of four).

 

How do premium assistance tax credits work and how much will they be?

Premium assistance can be an advance or refundable tax credit that helps reduce the cost of the annual premium. The amount of the credit is tied to the “Silver plan” (this benefit plan covers 70% of costs). The premium subsidy is set as follows:

If your income is:

Your premium assistance will limit your contribution to:

Up to 133% of FPL

2% of income

133% to 150%

3% - 4% of income

150% to 200%

4%- 6.3% of income

200% to 250%

6.3% - 8.05% of income

250% to 300%

8.05 - 9.5% of income

300% to 400%

9.5%

Cost-sharing reduction assistance is also available. These credits reduce out-of-pocket limits for those with incomes up to 400% FPL to the following levels:

100-200% FPL: one-third of the HSA limits ($1,983/individual and $3,967/family);

200-300% FPL: one-half of the HSA limits ($2,975/individual and $5,950/family);

300-400% FPL: two-thirds of the HSA limits ($3,987/individual and $7,973/family).

The exchange will help individuals and families:

Determine whether they meet income requirements and are eligible for coverage, including whether their employer coverage is “unaffordable”

Determine tax credits and cost-sharing reductions

Get certification of exemption from the individual coverage requirement so that no penalty will apply

 

Are there other options besides the four benefit packages in the health insurance exchange?

Yes. You can get catastrophic coverage through the exchange if you meet certain requirements, or you may qualify for Medicaid, which many states will use to cover the uninsured.

Catastrophic coverage option
If an individual can’t find a plan premium that costs less than 8% of his or her annual adjusted gross income, or qualifies for a hardship exemption from the individual coverage requirement, s/he may purchase catastrophic coverage through the exchange if under age 30. Catastrophic coverage provides the essential benefits, including three preventive care visits to a primary care physician; the plans come with a high deductible, and cost-sharing is limited to what can be charged under HSAs.

Medicaid
Individuals may also qualify for coverage under newly expanded Medicaid programs. States can modify their Medicaid eligibility requirements immediately, including allowing low-income non-parents to qualify and lowering income requirements for eligibility. States are required to expand Medicaid at least to those with incomes of less than 133% of the poverty guidelines ($24,353 for a family of four) by 2014, when states will receive extra money from the federal government.

 

What are the penalties for those who don’t meet the individual responsibility requirement? And are there exceptions?

If you don’t meet the individual responsibility requirement, which takes effect in 2014, the following penalties will apply (note that they’ll be phased in over a few years): The greater of $95 or 1% of income in 2014; $325 or 2% of income in 2015; and $695 or 2.5% of income when fully implemented. There is a cap equal to the annual premium for the Bronze plan. These are indexed to the Consumer Price Index.

Individuals are exempt from the requirement if they meet any of the following criteria:

Can’t find a premium for a qualified plan through the exchange that is less than 8% of adjusted gross income

Income below the tax filing threshold

Has a hardship waiver

Not covered for a period of less than three months during the year

Has a religious objection

 

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SHARED RESPONSIBILITY REQUIREMENTS

Are small employers that don’t offer health insurance required to pay a penalty?

If your business has between 50-99 employees, you have until 2016 to comply with the employer responsibility requirement.

Businesses with more than 100 employees are still required to comply with the responsibility requirement by 2015, and are now required to offer coverage to 70% of their employees by 2015 and 95% of their employees by 2016.

If you have at least 50 FTEs but no employee receives an individual premium tax credit or cost-sharing reductions (both based on income), there’s no penalty—whether or not you offer health insurance.

 

How are employees counted under the shared responsibility requirement?

A business is defined as “large” if it has at least 50 FTEs, not counting seasonal workers. Full-time employees are those who work 30 hours or more; part-time employees work less than 30 hours per week, figured on a monthly basis. This calculation involves taking the total number of hours worked divided by 120. Also, the first 30 employees are subtracted from the total when calculating the total amount of the assessment. 

 

If two or more companies have a common owner or are otherwise related, are they combined for purposes of determining whether they employ enough employees to be subject to the shared responsibility provisions?

Yes, consistent with longstanding standards that apply for other tax and employee benefit purposes, companies that have a common owner or are otherwise related generally are combined together for purposes of determining whether or not they employ at least 50 FTEs. If the combined total meets the threshold, then each separate company is subject to the shared responsibility provisions, even those companies that individually do not employ enough employees to meet the threshold. (The rules for combining related employers do not apply for purposes of determining whether an employer owes an Employer Shared Responsibility payment or the amount of any payment). The proposed regulations provide information on the rules for determining whether companies are related and how they are applied for purposes of the shared responsibility provisions.

 

Are companies that employ US citizens working abroad subject to the shared responsibility provisions?

A company that employs U.S. citizens working abroad generally would be subject to the shared responsibility provisions only if the company had at least 50 FTEs, determined by taking into account only work performed in the United States. Accordingly, employees working only abroad, whether or not U.S. citizens, generally will not be taken into account for purposes of determining whether an employer meets the 50 FTE threshold. Furthermore, for employees working abroad the time spent working for the employer outside of the U.S. would not be taken into account for purposes of determining whether the employer owes a shared responsibility payment or the amount of any such payment.

 

How is the shared responsibility payment calculated?

In 2015, if you have enough employees to be subject to the shared responsibility provisions and you have at least one full-time employee who receives a premium tax credit or cost-sharing reductions to purchase health coverage through a state insurance exchange, the payment assessed depends on whether or not you offer health coverage.

Doesn’t offer health insurance

If the employer does not offer coverage to at least 95% of full-time employees during the calendar year, and at least one full-time employee receives a premium tax credit or cost-sharing reductions, the business must pay $2,000 for each full-time employee, not counting the first 30. (Note that for purposes of this calculation, a full-time employee does not include a full-time equivalent).

Example: An employer with 51 employees who doesn’t offer health insurance and has one employee who receives an individual tax credit or cost-sharing reductions will be assessed $42,000 ($2,000 multiplied by 21).

Does offer health insurance

If the employer does offer coverage, and at least one full-time employee receives a premium tax credit or cost-sharing reductions, the employer will be required to pay $3,000 for each employee who receives assistance or $2,000 per full-time employee (not counting the first 30 employees), whichever is less. In this case, the coverage offered to an employee and his or her dependents must meet the criterion of having a minimum essential value (to be determined and defined by the secretary of Health and Human Services) and not be considered “inadequate” or “unaffordable.”

Coverage is considered “inadequate” if it covers less than 60% of the total allowed costs of benefits. See How does an employer know whether the coverage it offers provides minimum value? for further details.)

Coverage is considered “unaffordable” if the employee’s share of the premium is more than 9.5% of the employee’s household income.(See How does an employer know whether the coverage it offers is affordable? for further details.)

Example: An employer with 51 employees who offers coverage but has one employee who receives an individual tax credit or cost-sharing reductions will be assessed $3,000 ($3,000 x 1).

For an employer that offers coverage for some months but not others during the calendar year, the payment is computed separately for each month for which coverage was not offered. The amount of the payment for the month equals the number of full-time employees for the month (minus up to 30) multiplied by 1/12 of $2,000. If the employer is related to other employers, then the 30-employee exclusion is allocated among all the related employers. The payment for the calendar year is the sum of the monthly payments computed for each month for which coverage was not offered. After 2015, these rules apply to employers that do not offer coverage or that offer coverage to less than 95% of their full time employees and the dependents of those employees.

 

How does an employer know whether the coverage it offers is affordable?

If an employee’s share of the premium for employer-provided coverage would cost the employee more than 9.5% of that employee’s annual household income, the coverage is not considered affordable for that employee. If an employer offers multiple healthcare coverage options, the affordability test applies to the lowest-cost option available to the employee that also meets the minimum value requirement (see question 12, below.) Because employers generally will not know their employees’ household incomes, employers can take advantage of one of the affordability safe harbors set forth in the proposed regulations. Under the safe harbors, an employer can avoid a payment if the cost of the coverage to the employee would not exceed 9.5% of the wages the employer pays the employee that year, as reported in Box 1 of Form W-2, or if the coverage satisfies either of two other design-based affordability safe harbors.

 

How does an employer know whether the coverage it offers provides minimum value?

A minimum value calculator will be made available by the IRS and the Department of Health and Human Services (HHS). The minimum value calculator will work in a similar fashion to the actuarial value calculator that HHS is making available. Employers can input certain information about the plan, such as deductibles and co-pays, into the calculator and get a determination as to whether the plan provides minimum value by covering at least 60 percent of the total allowed cost of benefits that are expected to be incurred under the plan.

 

If an employer wants to be sure it is offering coverage to all of its full-time employees, how does it know which employees are full-time employees? Does the employer need to offer the coverage to all of its employees because it won’t know for certain whether an employee is a full-time employee for a given month until after the month is over and the work has been done?

The proposed regulations provide a method to employers for determining in advance whether or not an employee is to be treated as a full-time employee, based on the hours of service credited to the employee during a previous period. Using this look-back method to measure hours of service, the employer will know the employee’s status as a full-time employee at the time the employer would offer coverage. The proposed regulations are consistent with IRS notices that have previously been issued and describe approaches that can be used for various circumstances, such as for employees who work variable hour schedules, seasonal employees, and teachers who have time off between school years.

 

How will an employer know that it owes a shared responsibility payment?

The IRS will contact employers to inform them of their potential liability and provide them an opportunity to respond before any liability is assessed or notice and demand for payment is made. The contact for a given calendar year will not occur until after employees’ individual tax returns are due for that year claiming premium tax credits and after the due date for employers that meet the 50 full-time employee (plus full-time equivalents) threshold to file the information returns identifying their full-time employees and describing the coverage that was offered (if any).

 

How will an employer make a shared responsibility payment?

If it is determined that an employer is liable for a shared responsibility payment after the employer has responded to the initial IRS contact, the IRS will send a notice and request for payment. That notice will instruct the employer on how to make the payment. Employers will not be required to include the shared responsibility payment on any tax return that they file.

 

The health plan that I offer runs on a fiscal plan year that starts in 2014 and will run into 2015. Do I need to make sure my plan complies with these new requirements in 2014 when the next fiscal plan year starts?

For an employer that as of December 27, 2013, already offered health coverage through a plan that operates on a fiscal year (a fiscal year plan), transition relief is available. First, for any employees who were eligible to participate in the plan under its terms as of December 27, 2013 (whether or not they took the coverage), the employer will not be subject to a potential payment until the first day of the fiscal plan year starting in 2015. Second, if (a) the fiscal year plan (including any other fiscal year plans that have the same plan year) was offered to at least one third of the employer’s employees (full-time and part-time) at the most recent open season or (b) the fiscal year plan covered at least one quarter of the employer’s employees, then the employer also will not be subject to the shared responsibility payment with respect to any of its full-time employees until the first day of the fiscal plan year starting in 2015, provided that those full-time employees are offered affordable coverage that provides minimum value no later than that first day. So, for example, if during the most recent open season preceding December 27, 2013, an employer offered coverage under a fiscal year plan with a plan year starting on July 1, 2014 to at least one third of its employees (meeting the threshold for the additional relief), the employer could avoid liability for a payment if, by July 1, 2015, it expanded the plan to offer coverage satisfying the shared responsibility provisions to the full-time employees who had not been offered coverage. For purposes of determining whether the plan covers at least one quarter of the employer’s employees, an employer may look at any day between October 31, 2013 and December 27, 2013.

 

Is transition relief available to help employers that are close to the 50 full-time employee threshold determine their options for 2015?

Yes. Rather than being required to use the full twelve months of 2014 to measure whether it has 50 full-time employees (or an equivalent number of part-time and full-time employees), an employer may measure using any six-consecutive-month period in 2014. So, for example, an employer could use the period from January 1, 2014, through June 30, 2014, and then have six months to analyze the results, determine whether it needs to offer a plan, and, if so, choose and establish a plan.

 

When can an employee receive a premium tax credit?

Premium tax credits generally are available to help pay for coverage for employees who

are between 100% and 400% of the federal poverty level and enroll in coverage through an Affordable Insurance Exchange,

are not eligible for coverage through a government-sponsored program like Medicaid or CHIP, and

are not eligible for coverage offered by an employer or are eligible only for employer coverage that is unaffordable or that does not provide minimum value.

 

If an employer does not have enough employees to be subject to the shared responsibility provisions, does that affect their employees’ eligibility for a premium tax credit?

No. The rules for how eligibility for employer-sponsored insurance affects eligibility for the premium tax credit are the same, regardless of whether the employer has enough employees to be subject to the shared responsibility provisions.

 

The Treasury Department and the IRS have proposed regulations on the shared responsibility provisions that are proposed to be effective for months after December 31, 2014. However, there are certain decisions and actions employers may have to take during 2014 to prepare for 2015. May employers rely on the proposed regulations during 2014 for guidance on the shared responsibility provisions?

Yes. Taxpayers may rely on the proposed regulations for purposes of compliance with the shared responsibility provisions. If the final regulations are more restrictive than the guidance in the proposed regulations, the final regulations will be applied prospectively, and employers will be given sufficient time to come into compliance with the final regulations.

 

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AFFORDABILITY AND CONTROLLING COSTS

Will there be limits on what insurance companies can charge my employees and me?

Yes. There will be a number of limits to what insurers can charge. Beginning in 2014, they may only vary premiums based on scope of coverage (individual vs. family), geography, tobacco use, wellness program participation and age. The latter is limited to a 3-to-1 ratio. Rating can no longer take into account gender, health status, occupation, genetic information or claims history. Deductibles can’t exceed $2,000 annually for individuals and $4,000 for families and cost-sharing can’t exceed limits for HSAs.

Also, beginning with plan year 2010, the HHS Secretary and the states established a process for the annual review of premium increases. As of 2011, insurers are required to publicly disclose and justify rate increases of 10 percent or more in the individual and small group market. Proposed increases will then be analyzed by the Secretary of Health and Human Services and the state to determine whether they are unreasonable.

States will be required to make recommendations to their exchange about whether insurers should be excluded from the exchange due to unjustified premium increases. States will receive up to $250 million from 2010 to 2014 to help them develop or enhance rate review programs.

Some states have also introduced or passed legislation to limit annual increases and/or require state approval of premiums. Massachusetts is one such state that already has a requirement in place.

 

What does the new law do to control costs?

Reform is expected to reduce the deficit by $143 billion over the next 10 years by attacking waste, fraud and abuse and paying for quality over quantity. The law was designed to control and stabilize costs in a variety of ways: Expanding coverage to those previously uninsured will reduce cost-shifting; combining the purchasing power of small businesses and individuals through the exchanges will promote competition; creating streamlined benefits options will encourage better consumer decision-making; and investing in wellness initiatives will prevent some chronic illness, to name a few examples.

The new law also encourages development of more efficient and cost-effective payment and delivery models for the long-term. Examples include the creation of advisory boards to explore ways to lower healthcare costs, promote quality and efficiency and expand access to evidence-based care; testing of different models of paying doctors and hospitals to reward patient outcomes, rather than number of visits and tests ordered; and research into the relative effectiveness of various treatments for specific conditions and illnesses.

According to a report by Robert Wood Johnson Foundation and Urban Institute, reform is expected to save small employers 7.4% of the premium contribution dollars they’d spend if reform was not implemented. For a more in-depth cost analysis, see Table 4 on page 5 of the report.

 

Will there be malpractice reform under this new law?

The law establishes a five-year demonstration grant program for states to develop, implement and evaluate alternatives to the current system. The new grants will help states and healthcare systems test models that: (1) put patient safety first and work to reduce preventable injuries; (2) foster better communication between doctors and their patients; (3) ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and (4) reduce liability premiums.

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ADDITIONAL OPTIONS: MULTI-STATE PLANS, CO-OPS AND MORE

Will state exchanges give small business owners and individuals more choices of insurance plans? And will consumer protections and price limits still apply?

Yes. The law requires that at least two multi-state plans be offered in each state exchange. The HHS Secretary and NAIC will issue regulations for multi-state options that can be entered into by 2016. The state and Secretary must approve the option.

Private insurers will be able to offer multi-state plans through the exchange. These plans will be subject to the same requirements as other qualified plans offered in the exchange, including the consumer protection laws of the purchaser’s state, and the Secretary has to be assured that the policy will not weaken enforcement of state consumer protection laws.

The agency that will oversee multi-state plans is the Office of Personnel Management (OPM), the federal agency that runs the Federal Employee Health Benefits Program (FEHBP), which covers federal employees and their families nationwide. It also includes members of Congress and their families. (Once the exchange is operational, members of Congress, congressional staff and their families must purchase their healthcare coverage through the exchange just like small businesses and individuals).

States will also be able to form “healthcare choice compacts” with other states to permit cross-selling of insurance. Insurers would be able to sell in any state in the compact. They would be subject to the laws of each state where coverage is issued or written except for consumer protection, network adequacy, market conduct or unfair trade practices. The compacts may only be approved if they provide coverage that is at least as comprehensive and affordable as any other coverage offered through the exchange. Governing regulations will be issued by July 1, 2013; compacts may not be established before 2016.

 

When will new nonprofit insurance co-ops be available in my area? How will they work?

The new insurance co-ops are not mandated, but, rather, encouraged. A new program will encourage the development of nonprofit, member-run cooperatives in each state and the federal government has awarded $3.8 billion in loans for startup costs and grants to help qualified organizations capitalize on these new plans. An advisory board was recently named by the Department of Health and Human Services to help the government make decisions on offering loans and grants to start new co-ops; priority will be given to entities that offer statewide coverage. Starting January 1, 2014, co-ops will have to meet the same set of standards as other insurers in order to sell health plans through the exchanges.

Co-op health plans have been established in other states and have generally taken a number of years to get set up. These new entities can’t be an existing insurer or a government entity. Loans and grants may help speed up the process.

The bottom line: It will be up to parties in each state to take the initiative to set up an insurance co-op with federal support and funding. 
Further information provided by the Department of Health and Human Services can be found here.

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ADDITIONAL ISSUES

Does the law affect coverage for early retirees?

For a period of time, there has been temporary assistance available for employers who provide health coverage for early retirees who are 55 or over but are not yet eligible for Medicare. The Department of Health and Human Services (HHS) established a program that provides re-insurance coverage. The program has paid 80% of eligible claims between $15,000 and $90,000, and program participants have been able to submit claims for medical care going back to June 1, 2010. HHS began accepting applications on June 29, 2010; however, applications are no longer being accepted as of May 5, 2011. For information on deadline provisions, visit www.hhs.gov/ociio. or www.errp.gov. The program will expire January 1, 2014.

 

Are there changes to Health Spending Accounts (HSAs), Flexible Spending Accounts (FSAs) and Archer Medical Spending Accounts (MSAs)?

Yes, there are several:

For FSAs under a cafeteria plan, annual contributions will be limited to $2500, beginning in 2013; the cap is indexed to the Consumer Price Index – Urban (CPI-U) for subsequent years. There is currently no federal limit and employers set the annual cap.

The FSA definition of qualified medical expenses will be the same as those allowed under itemized tax deduction. Previously, employers could be more restrictive than the government as to what qualifies as acceptable medical expense. This change, effective January 1, 2011, no longer allows coverage of OTC items unless directed by a physician.

The additional tax that applies to early distribution for nonqualified medical expenses before age 65 will go up: for HSAs, the tax will increase from 10% to 20% and for Archer MSAs, from 15% to 20%.

The threshold of adjusted gross income for deducting medical expenses is raised from 7.5% of adjusted gross income (AGI) to 10%. Those 65 and over can continue to claim 7.5% of AGI through 2016.

 

How will the changes in simple cafeteria plans work for small business owners?

The reform law makes it easier for small employers to offer cafeteria plans by carving out a safe harbor from nondiscrimination requirements. This change relaxes participation restrictions so that small employers can provide tax-free benefits, including healthcare coverage, to their employees. The self-employed are also considered qualified employees. The change exempts employers who make contributions for employees under a simple cafeteria plan from pension plan non-discrimination requirements applicable to key employees and those who are highly compensated.

 

Are there new reporting requirements, such as on the W-2?

Yes. Every employer will be required to report the value of the health insurance benefit for each employee on his or her annual W-2 beginning in 2011. This is to determine whether a) an individual has coverage as required and b) his or her health plan will be subject to the excise tax. Note that there is no new tax associated with this requirement.

 

Does an employee have to take an employer’s insurance if offered?

No. Employees can join their spouse’s coverage or purchase coverage through the exchange or the individual market. However, as of 2014 when individual responsibility requirements take effect, if an employee refuses employer coverage and doesn’t obtain coverage on his or her own, the employee will be subject a penalty.

If an employee waives coverage for any reason other than that it doesn’t meet the affordability test, s/he can still purchase coverage through the exchange, but will not be eligible for the refundable tax credit.

If an employee’s share of the premium for employer-sponsored coverage meets the law’s definition of unaffordable (i.e., it exceeds 9.5% of their adjusted gross income), s/he can purchase coverage through the exchange. They can’t receive a tax credit unless the employer plan does not have an actuarial value of at least 60 percent (as defined by the Department of Health and Human Service’s essential benefits package) or is deemed unaffordable. The exchange will determine if the coverage is unaffordable for the employee.

 

What is the minimum coverage that everyone is required to carry? Is there a “bare-bones” option?

For most, the minimum coverage will be the standard Bronze benefit package available through the exchange that covers 60% of the costs.

Catastrophic-only coverage is available through the exchange (but only in the individual market) to those under age 30. It’s also available to those deemed exempt from the individual coverage requirement due to hardship and/or because they can’t find a qualified plan with a premium that costs less than 8% of their adjusted gross income. This option must still cover essential benefits, with at least three annual visits to a primary care physician for preventive care. Catastrophic-only plans will have a large deductible, and cost-sharing will be capped at the out-of-pocket limits under HSAs.

 

How will I know if my employees are getting premium credits that might subject me to the free-rider penalties? Who validates employees’ eligibility?

Many of these details have yet to be determined. The health insurance exchange will determine an employee’s eligibility for coverage through the exchange and whether they qualify for premium assistance tax credits. It is assumed there will be a good information flow between the exchange, the IRS and employers.

 

Does the law offer incentives to create or participate in wellness programs?

The new law established grants for up to 5 years to small employers that establish wellness programs. HHS announced $9M granted in 2011 for studying how to reduce the risk of chronic disease among employees and their families through evidence-based workplace health interventions and looking into promising practices. Wellness grants incentivize employers to promote sustainable and replicable workplace health activities and engage in peer-to-peer healthy business mentoring.

 

Can employees still waive coverage if not covered under another program?

Employees may waive coverage, but they will have to pay the penalty for not having coverage unless they can’t afford the employee share of the premium (more than 8% of their adjusted gross income) and qualify for the individual responsibility exemption. Otherwise, they’ll have to obtain coverage through a spouse, through the exchange or in the individual market.

 

What are the details on the excise tax for small businesses?

The federal excise tax, due to take effect in 2018, will apply to insurers and plan administrators in the group and self-insured market. It won’t apply to the individual market except for coverage eligible for the self-employment deduction.

The excise tax is set at 40% of the amount in excess of a threshold premium of $10,200 for single coverage and $27,500 for family coverage. The threshold premium is indexed to the Consumer Price Index – Urban (CPI-U) plus 1% in 2019 and the CPI-U only for 2020 and after.

There are several caveats: The threshold premium is increased by $1650 for single coverage and $3450 for family coverage for retirees age 55 and older and for plans that cover workers in high-risk professions. There is also an adjustment for firms with higher health costs due to the age or gender of employees. Finally, there may be an adjustment to the initial premium threshold if there is unexpected growth in premiums before 2018.

 

By what date must we put kids under 27 back on parents’ health insurance?

This is a new option that took effect September 2010. Note that parents are not required to put their children back on their plans—the provision was intended to ensure coverage for young people who, for various reasons, can’t obtain or afford their own insurance. Until 2014, only young people who are not offered coverage by their employer can stay on their parent’s coverage until age 27. Beginning in 2014, this provision applies to all young people, whether or not their employer offers them coverage.

The last day a plan can extend coverage is the day before the 27th birthday;

The employer can extend coverage through the end of the year of the 26th birthday without adverse tax consequences to the employee;

Employers may not levy a surcharge for extending adult dependent coverage;

Note that maternity benefits may be excluded in some cases: If an employer currently offers maternity benefits to dependents, the coverage must now be offered to adults up to age 27. Otherwise, maternity benefits may be excluded for this entire group until 2014, when they become part of the essential benefits package and must be covered.

> HealthCare.gov fact sheet on the extension of coverage for young adults

 

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WHERE CAN I GET ADDITIONAL INFORMATION?

Check the Small Business Majority website (http://www.smallbusinessmajority.org/) and sign up for our alerts.

Healthcare.gov, a new portal maintained by the Department of Health and Human Services. The small business site includes information about small business tax credits, coverage options, reinsurance for retirees and more, and will be updated regularly.

Check the IRS website, http://www.irs.gov/; the new front page at IRS.gov has tips, a detailed FAQ and eligibility worksheets.  

 

Sources:

Patient Protection and Affordable Care Act (Public Law 111 - 148) and Healthcare and Education Reconciliation Act (Public Law 111 - 152)

Small Business Health Care Tax Credit – White House Fact Sheet, March 24, 2010

Small Business Health Care Tax Credit: Frequently Asked Questions, IRS (http://www.irs.gov/newsroom/article/0,,id=220839,00.html)

CCH Tax Briefing Special Report, March 30, 2010 (http://tax.cchgroup.com/legislation/Senate-Healthcare-Fixes-Bill-03-25-10.pdf)

Kaiser Family Foundation, http://healthreform.kff.org/

Letter from HHS Secretary Sebelius on risk pool http://www.dhhs.gov/news/press/2010pres/04/20100402b.html

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