myBenefitsBlog.com

HIPAA Audits Have Begun

rcummings — Tue, 22 May 2012 22:45:34 +0000

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has begun auditing covered entities for compliance with the Health Insurance Portability and Accountability Act (HIPAA) under the HIPAA Audit Program (Audit Program). The Audit Program is funded by the Health Information Technology for Economic Clinical Health (HITECH) Act and requires HHS to conduct periodic audits to ensure both covered entities and business associates are complying with the HIPAA Privacy and Security Rules, as well as all Breach Notification standards.

This first round of audits is being conducted through OCR’s Pilot Phase. OCR, the agency which enforces the HIPAA Privacy and Security Rules, anticipates that it will audit approximately 150 covered entities through December 2012. Under the Audit Program, every covered entity and business associate is eligible for an audit. However, based on the objectives of the Pilot Phase, OCR will only audit a range of covered entities, including small provider practices, medical centers, insurance companies, local pharmacies, and national health care chains. While covered entities of all sizes and functions are subject to an audit in 2012, OCR intends to include business associates in future audits.

In March, OCR stated that the first 20 audits have been conducted, and the remaining covered entities slated for audits in 2012 will be notified within the next few weeks. OCR also stated that the audits have already uncovered significant security vulnerabilities.

OCR Enforcement
Historically, OCR’s enforcement has been complaint driven; however, the agency has become increasingly proactive in sighting out noncompliance and opening compliance reviews. The Audit Program is a formal method of this proactive approach, as it allows OCR to examine the methods, policies and procedures, compliance risks, and vulnerabilities of a selected entity by initiating an audit.

Although OCR states that the Audit Program is not an official investigation, where an audit uncovers compliance concerns, covered entities and business associates will be subject to an official compliance review. Compliance reviews can result in civil monetary penalties (CMPs) of up to $50,000 per violation, and corrective action plans (CAPs), which have the potential to remain in effect for years after an entity has achieved full compliance.

Audit Process
All audits conducted under the Pilot Phase will consist of a document review, including all applicable privacy and security policies and procedures, as well as an onsite visit from OCR. OCR will conduct these audits through government contractor KPMG LLP, using accepted Government Auditing Standards issued by the Government Accountability Office.1 KPMG’s requests during the audit will carry the full weight of the federal government.

If selected to participate in the Audit Program, an entity will receive written notification of the audit. The entity will then have 10 days to provide the requested documentation and a minimum of 30 days to prepare for the onsite visit. The site visit will extend anywhere from three to 10 days and likely include the interviewing of key staff members and the observance of physical plant operations.

Upon reviewing the entity’s Data Response, observing the physical plant, and documenting its findings, KPMG will draft a report to OCR for review and, if appropriate, possible enforcement action. Each audit will result in a report issuing a statement of compliance findings. The selected entity will be provided with a copy of the draft report prior to final submission to OCR, and the entity will have 10 days to provide a written response to this report’s findings. Before finalization, the auditors will include in the report any steps the entity has taken to resolve identified compliance concerns.

In the Pilot Phase, and through the entire Audit Program, OCR is specifically looking for entities to have in place a full set of compliant policies and procedures. Failing to have a complete set of policies and procedures that are reasonably designed for the entity allows the auditors to immediately uncover noncompliance. Failing to have physical safeguards in place is another easily observed area of noncompliance. Considering the HIPAA Privacy Rule has been in effect for nearly 10 years, OCR is likely to have little tolerance for these kinds of violations.

OCR’s Post-Audit Action
Notwithstanding the discovery of a HIPAA violation resulting in a compliance review or other enforcement, OCR will not publically post the findings or participation of individual entities. At this time, OCR plans to use the audit reports to better understand the compliance challenges covered entities face and what technical and other guidance may be most valuable in the agency’s efforts to provide ongoing assistance.

OCR will continue to accept complaints from consumers and members of the industry, but it hopes the Audit Program’s proactive approach will generate greater insight into the status of HIPAA compliance efforts and practices. OCR has stated that it will also share the results of the Pilot Phase so as to promote best practices and address specific compliance issues.

Audit Preparation
Although covered entities and business associates do not need to be concerned about unscheduled or undercover auditing, there are several steps entities can take to prepare for an audit. Such steps will also help support an entity’s HIPAA compliance, should an investigation be launched pursuant to an independent complaint.

In general, covered entities and business associates must be prepared to respond to an OCR Data Request. OCR directly contacts Privacy Officers, Legal Departments or Chief Executive Officers when attempting to communicate with an entity. Establishing a good point of contact is important early on in an OCR audit or investigation. Knowledge of whether the requested information exists and where such information is located is also important in providing a complete and timely response.

Steps Covered Entities and Business Associates Can Take to be Prepared for a Possible Audit

Centralize HIPAA compliance documents, including:

Privacy and Security Rule notices, policies, and procedures,
Medical record request forms,
Staff training dates and educational training material,
Security Rule risk analyses,
Breach Notification protocols,
Business Associate Agreements, and
Any documentation regarding mitigating or corrective action measures in conjunction with incidents of noncompliance.
Review Privacy and Security Rule policies and procedures for adequacy;
Identify policies and procedures not currently or properly implemented;
Ensure safeguard protocols are properly implemented and system vulnerabilities are documented and actively addressed; and
Identify key staff to whom auditors should speak, including:

Chief Information Officer,
Medical Records Director, and
Compliance Officers.
Confirm key staff is well-versed in the privacy and security policies, staff training initiatives, and internal grievance processes;
Confirm staff is trained and aware of the personal liability associated with HIPAA noncompliance; and
Prepare to fully cooperate and accommodate OCR and its auditors.
OCR has previously addressed the unresponsive and uncooperative behavior of an entity with severe enforcement action. On the other hand, OCR has welcomed the opportunity to provide technical assistance to entities and, in the past, has favorably considered an entity’s voluntary corrective actions.

Future Enforcement
President Obama has proposed a five-to-eight percent cut for OCR’s 2013 fiscal year budget. Nevertheless, OCR has no intention of curbing the Audit Program or its enforcement actions. In fact, OCR staff has stated that it is looking to take greater control over its enforcement ability by focusing on increased efficiency and high-impact cases.

As provided for under the HITECH Act, CMPs issued by OCR for noncompliance are also retained by the agency. Because of this arrangement, there is concern OCR budget cuts will create an incentive for OCR to pursue enforcement actions resulting in CMPs. Although OCR states that it is committed to transparency, since 2010, it has been significantly more aggressive in pursuing enforcement and compliance through CMPs. Moreover, the HITECH Act has increased the minimum penalty amount for HIPAA violations in addition to issuing a “willful neglect” standard. Where “willful neglect” exists, CMPs must be imposed. Therefore, it is expected penalties for noncompliance will be issued with more frequency and in much greater amounts.

2013 HSA Contribution Limits Released

rcummings — Thu, 03 May 2012 15:09:23 +0000

IRS has just issued Revenue Procedure 2012-26, which provides the 2013 cost-of-living contribution and coverage adjustments for HSAs, as required under Code Section 223(g). Most contribution limits and the out-of-pocket amounts have been increased for 2013.

2013 Annual Contribution Limit:

Single coverage: $3,250 (up from $3,100 in 2012)
Family coverage: $6,450 (up from $6,250 in 2012)

2013 Minimum Deductible for HDHP:
Single coverage: $1,250 (up from $1,200 in 2012)
Family coverage: $2,500 (up from $2,400 in 2012)

2013 Maximum Out-of-pocket:
Single coverage: $6,250 (up from $6,050 in 2012)
Family coverage: $12,500 (up from $12,100 in 2012)

For a copy of Revenue Procedure 2012-26, please click on the link below:

http://www.irs.gov/pub/irs-drop/rp-12-26.pdf

Summary of Benefit Coverage Requirements for Health FSAs and HRAs

rcummings — Tue, 01 May 2012 12:57:30 +0000

Does an employer have to provide a copy of the Summary of Benefits and Coverage (“SBC”) to enrollees of Health Flexible Spending Accounts (“Health FSA”) or Health Reimbursement Arrangements (“HRA”)?

The SBC requirement applies to group health plans (both insured and self-insured) and insurers (as defined by applicable provisions of the PHSA, ERISA, or the Code) but not to certain “excepted benefits,” PHSA § 2715(a), as added by PPACA, Pub. L. No. 111-148 (2010). Grandfathered group health plans must comply with this mandate, as provided in PPACA, Pub. L. No. 111-148, § 1251(a)(3) (2010), as amended by PPACA, Pub. L. No. 111-148, § 10103(d)(1) (2010).

When is a Health FSA or a HRA considered an excepted benefit?

Health FSA:
A health FSA is considered an excepted benefit for a “class of participants” if the health FSA is a health FSA under Code Section 106(c)(2) and satisfies two conditions:
*Maximum Benefit Condition: The maximum benefit payable under the health FSA to any participant in the class for a year cannot exceed two times the employee’s salary reduction election under the health FSA for the year (or, if greater, the amount of the employee’s salary reduction election for the health FSA for the year, plus $500), as provided in Treasury Regulations Section 54.9831-1(c)(3)(v)(B);DOL Regulations Section 2590.732(c)(3)(v)(B);HHS Regulations Section 146.145(c)(3)(v)(B); and

*Availability Condition: Other nonexcepted group health plan coverage (e.g., major medical coverage) must be made available for the year to the class of participants by reason of their employment, as provided in Treasury Regulations Section 54.9831-1(c)(3)(v)(A);DOL Regulations Section §2590.732(c)(3)(v)(A); HHS Regulations Section146.145(c)(3)(v)(A).

Neither the regulations nor the preamble to the regulations explains what is meant by the term “class of participants.” The term appears to preclude a “participant-by-participant” approach to determining whether benefits under a health FSA are excepted benefits.

Examples of Health FSA Funding That Meet the Maximum Benefit Condition:

* A one-for-one employer match (employer $600, employee $600).
* An employer contribution of $500 or less (employer $500, employee $200).
Examples of Health FSA Funding That Do Not Meet the Maximum Benefit Condition:
* An employer contribution of more than $500, if employee contributes $500 or less (employer $600, employee $400).
* An employer contribution in excess of one-to-one match, if employee contributes more than $500 (employer contributes $700, employee contributes $600).

Remember: Health FSAs funded exclusively by employee salary reduction contributions (with annual coverage capped by the amount of the annual salary reduction election) will, by definition, satisfy the Maximum Benefit Condition.

HRA:

A 100% employer-paid stand-alone HRA with an annual limit less than or equal to $500 and no carryovers will be considered an excepted benefit if the employer makes major medical insurance available to all employees who are eligible for the HRA. This is the same requirements as provided above for Health FSAs. This is because such an HRA may be considered a health FSA and would qualify as an excepted benefit. Likewise, a retiree-only HRA or limited-purpose HRA (i.e., that provides only vision and dental benefits) would also be considered an excepted benefit .

The above HIPAA exceptions will not apply to most HRAs. HRAs that can be used for medical expenses generally and that permit carryovers or that provide an employer-funded benefit of more than $500 will not be considered excepted benefits.

American Benefits can create SBCs for non excepted FSAs and HRAs. Contact your benefits administrator or support@amben.com

Court Finds Employer Met ERISA’s Voluntary Plan Safe Harbor, Despite Payment of Premiums Through Cafeteria Plan

rcummings — Wed, 14 Mar 2012 00:02:20 +0000

Voluntary benefits that are sold directly to employees may be subject to ERISA as employer-sponsored plans, or may be exempt under the voluntary plan safe harbor, which allows for only minimal involvement by the employer. The plaintiff in this case purchased a short-term disability policy after seeing a presentation by the insurer at his workplace. He later sued under state law after his claim for benefits was denied. The insurer argued that the state-law claims were preempted because the plan was subject to ERISA. The court disagreed, holding that the arrangement met the voluntary plan safe harbor. (As background, a plan falls within the safe harbor if 1) the employer makes no contributions; 2) participation is completely voluntary; 3) the employer’s involvement is limited to permitting the insurer to publicize the program and to collecting and remitting premiums; and 4) the employer receives no consideration for collecting and remitting premiums, other than reasonable compensation.)
The insurer claimed the plan did not meet the safe harbor requirements because the employer’s involvement went beyond that allowed by law. For example, the insurer claimed that the employer endorsed the plan by selecting this particular insurer. But the court found that there was no evidence that this employer went beyond permitting the insurer to publicize the program, distinguishing a case where the employer’s use of a consulting firm when selecting an insurer took the plan outside the safe harbor. Notably, in contrast to other courts, this court held that collecting premiums through the employer’s cafeteria plan did not take the plan out of the safe harbor.
Ballard v. Leone, 2012 WL 665987 (D. Md. 2012)

HHS Issues Health Care Exchange Rules

rcummings — Tue, 13 Mar 2012 00:33:15 +0000

By Joyce Frieden, News Editor, MedPage Today

WASHINGTON — The Department of Health and Human Services has issued the final regulations for implementing the state health insurance exchanges mandated by the Affordable Care Act (ACA).

They allow states more flexibility in determining eligibility for the exchanges than was first given, according to Chiquita Brooks-LaSure, director of coverage policy in HHS’ Office of Health Reform. That change was made after “a lot of input from states and stakeholders,” she told reporters on a Monday afternoon conference call.

The setup of the exchanges “lets consumers easily determine their eligibility for enrollment and easily enroll in coverage that’s right for them,” said Brooks-LaSure. That includes using a single streamlined application so that consumers will get a “consistent eligibility determination” without needing to submit different information for the different plans offered.

Under the ACA, nearly everyone is required to have insurance starting in 2014, and the government will provide financial assistance to those who need it. People who earn less than 133% of the federal poverty level can enroll in Medicaid, and those who are between 133% and 400% of the poverty level will be eligible for tax credits from the federal government in order to buy insurance.

People can use the tax credit to buy health insurance through an exchange in their state. The exchanges will act as “one-stop shops” where people can compare different insurance plans.

For small employers — such as small physician practices — that want to provide health insurance for their employees, the exchanges also will offer a Small Business Health Options Program (SHOP).

SHOP will let small businesses choose among different levels of coverage, depending on what works for them and their budget. SHOP will allow these employers to offer coverage from a number of insurers, but still get one bill and write only one check, according to HHS.

The SHOP program also features tax credits to help make coverage easier for small businesses to afford.

According to HHS, starting in 2014, small employers purchasing coverage through SHOP may be eligible for a tax credit of up to 50% of their premium payments if they:
• Have no more than 25 employees
• Pay employees an average annual wage of less than $50,000
• Offer all full-time employees coverage
• Pay at least 50% of the premium
To view the final regulations, visit:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-06125.pdf

HHS issues draft bulletin defining Actuarial Value for Health Plans

rcummings — Thu, 01 Mar 2012 21:59:22 +0000

The HHS has just issued their draft bulletin on defining the “actuarial value” methodology that will be used to calculate AV for health plans, and it is good news for HSAs and HRAs! The rules DO include the employer contributions to accounts in the calculations, which is tremendously beneficial to the attractiveness of the plans. An excerpt from HHS document is below.

The key text is below:

Treatment of Health Savings Accounts and Health Reimbursement Arrangements in Calculating Actuarial Value Section 1302(d)(2)(B) of the Affordable Care Act directs the Secretary to issue regulations under which employer contributions to a health savings account (within the meaning of section 223 of the Internal Revenue Code of 1986) may be taken into account in determining the level of coverage for a plan of the employer. Calculation of the AV of high-deductible health plans (HDHP) linked to a health savings account (HSA) or a health plan linked to a health reimbursement arrangement (HRA) poses a special challenge. Simply calculating the AV of the HDHP based on the insurance product could understate the value of coverage and some HDHPs could fall below the level of a bronze plan based on the HDHP alone. Yet accounting for the total coverage provided by the combination of the HDHP and the full value of the HSA or HRA could overstate the AV because, empirically, only a portion of these accounts are used toward health in a given year. The AV calculation should, therefore, reflect an appropriate adjustment to these contributions. We intend to propose that for purposes of calculating the AV of an employer health benefit plan, the annual employer contribution to the employee’s HSA associated with a qualifying HDHP and the amount made available for the first time in a given year under a HRA that is linked to an employer health benefit plan shall be considered part of the benefit design of the health plan. In calculating the AV of the combined HDHP and HSA or combined employer health benefit plan and HRA, the calculation would assume that the employer contribution to the HSA or HRA is used by the employee to pay for cost-sharing. Accordingly, these amounts would be credited to the numerator of the AV calculation. This means that the AV calculator would include any current year HSA contributions and amounts first made available under an HRA as an input into the calculator that can be used to determine the AV of an employer health benefit plan. For example, if a HDHP with a $3,000 deductible has an AV of 55 percent and the employer provides an HSA contribution of $1,000, that contribution would be applied towards the numerator of the AV calculation. However, because generally only a portion of an HSA is used in a year for health services, HSA contributions would be adjusted so that the employer receives the same credit for HSA contributions in the numerator of the AV calculation as it would receive for the same amount of first-dollar insurance coverage. The same rule would apply for amounts first made available under an HRA. In the individual market, we intend to propose that HSA contributions paid directly by the individual would not count towards AV. Finally, we note that the method used to evaluate the HSA or HRA impact on health plan AV has no bearing on the opportunity of employers to offer HSAs or HRAs, or the tax treatment of HSA contributions or amounts made available under an HRA.

HSA minimum deductible will rise to $2,500 family and $1,250 individual in 2013

rcummings — Sat, 25 Feb 2012 14:09:09 +0000

The HSA minimum deductible, a benchmark for comparing HSAs with traditional PPO plans, will rise to $2,500 family and $1,250 individual in 2013, the first increase in the past 3 years, according to former Treasury official Roy Ramthun who makes the annual estimate using near-final government data.

A statutory technical freeze on the rise for three years has resulted in the average employee plan deductible without an HSA rising to virtually the same amount as an HSA minimum deductible. This means people who are offered a choice often now see little difference in deductibles if they pick an HSA. Now HSAs will probably rise at closer to the same rate as regular HD plans.

Health reimbursement accounts (HRAs) have no minimums on how much the deductible is or the level of the employer contribution. In real market terms, HRAs typically have lower deductibles and generate less out-of-pocket cost than HSAs. So if anything the faster-rising minimum HSA deductible will make that difference with HRAs even greater from the consumer point-of-view.

Ramthun also announced that the maximum contribution to HSAs in 2013 will hit a new high of $6,450 family and $3,200 individuals (self-only), plus $1,000 for those over 55 who will be allowed a total of $7,450. Anybody can contribute up to the maximum regardless of their deductible (combined EE and ER), so a rise in the total allowed makes HSAs more attractive as investments.

© Interpro Publications 2012

Are You Really Saving Money By Self Administering Your HRA?

rcummings — Thu, 23 Feb 2012 13:31:04 +0000

Posted by RENEE KUHS, Compliance Attorney

Do you think you’re saving money by administering your health reimbursement arrangement (HRA)? In our experience, many employers that self-administer an HRA often overlook important compliance obligations that put them at financial risk. Failure to comply with the following requirements is common and can be costly.

COBRA

An HRA is a group health plan subject to COBRA. Employees that experience a qualifying event are entitled to continue coverage under the employer’s HRA. An employer that fails to extend COBRA coverage to HRA participants can be subject to substantial fines. Employers can be fined up to $110 per day for failure to provide an initial notice or election notice.

HIPAA Privacy

An HRA is a self-funded health plan and governed by the HIPAA Privacy Rules. Employers that offer a fully-insured health plan and sponsor an HRA often overlook their HIPAA Privacy obligations. In order to administer an HRA, the entity processing the claims receives protected health information (PHI) which is protected by HIPAA. Employers that offer a fully-insured health plan will rely on the insurance carrier to comply with the HIPAA Privacy Rules. However, the HRA compliance obligations rest with the employer. Employers that do not comply can be subject to civil penalties of up to $100 per violation.

Medicare Reporting

An HRA is a group health plan subject to Medicare Secondary Payer (MSP) provisions. New reporting requirements went into effect in the fourth quarter of 2010. Employers are required to provide HRA coverage information to the Centers for Medicare and Medicaid Services (CMS). The information reported to CMS will allow better coordination of payer responsibilities between the group health plan and Medicare. Failure to comply could result in fines of up to $1,000 per day.

Plan Documents

An HRA is an employee welfare plan under ERISA. ERISA requires that every warfare plan be established and maintained pursuant to a written instrument. The written instrument or plan document serves to define what expenses are eligible for reimbursement, the amount of employer contribution, and whether the funds may be rolled over from year to year. Not only could an enforcement action be brought against an employer for failure to have a plan document, but it is difficult for the employer to prove plan terms and enforce its provisions.

If you are administering an HRA for your employees and are concerned about your compliance status, please feel free to contact support@amben.com or rcummings@amben.com

EBRI Study – HSA and HRA Accounts Continue Growth Trend

rcummings — Wed, 15 Feb 2012 14:32:12 +0000

www.myhealthguide.com

MyHealthGuide Source: Employee Benefit Research Institute (EBRI), 1/2012, EBRI New Release and EBRI Full Text Brief with ChartsExecutive Summary

ASSET LEVELS GROWING

In 2011, there was $12.4 billion in health savings accounts (HSAs) and health reimbursement arrangements (HRAs), spread across 8.4 million accounts, according to data from the 2011 EBRI/MGA Consumer Engagement in Health Care Survey, sponsored by EBRI and Matthew Greenwald & Associates.

This is up from 2006, when there were 1.3 million accounts with $873.4 million in assets, and 2010, when 5.4 million accounts held $7.3 billion in assets.

AFTER LEVELING OFF, AVERAGE ACCOUNT BALANCES INCREASED

After average account balances leveled off in 2008 and 2009, and fell slightly in 2010, they increased in 2011. In 2006, account balances averaged $696.

They increased to $1,320 in 2007, a 90 percent increase.

Account balances averaged $1,356 in 2008 and $1,419 in 2009, 3 percent and 5 percent increases, respectively.

In 2010, average account balances fell to $1,355, down 4.5 percent from the previous year. In 2011, average account balances increased to $1,470, a 9 percent increase from 2010.

TOTAL AND AVERAGE ROLLOVERS INCREASE

After declining to $1,029 in 2010, average rollover amounts increased to $1,208 in 2011.

Total assets being rolled over increased as well: $6.7 billion was rolled over in 2011, up from $3.7 billion in 2010.

The percentage of individuals without a rollover remained at 13 percent in 2011.

HEALTHY BEHAVIOR DOES NOT MEAN HIGHER ACCOUNT BALANCES AND HIGHER ROLLOVERS

Individuals who smoke have more money in their accounts than those who do not smoke. In contrast, obese individuals have less money in their account than the non-obese.

There is very little difference in account balances by level of exercise. Very small differences were found in account balances and rollover amounts between individuals who used cost or quality information, compared with those who did not use such information.

However, next to no relationship was found between either account balance or rollover amounts and various cost-conscious behaviors. When a difference was found, those exhibiting the cost-conscious behavior were found to have lower account balances and rollover amounts.

DIFFERENCES IN ACCOUNT BALANCES

Men have higher account balances than women, older individuals have higher account balances than younger ones, account balances increase with household income, and education has a significant impact on account balances independent of income and other variables.

DIFFERENCES IN ROLLOVER AMOUNTS

Men rolled over more money than women, and older individuals had higher rollover amounts than younger individuals. Rollover amounts increase with household income and education, and individuals with single coverage rolled over a slightly higher amount than those with family coverage.

About EBRI

The Employee Benefit Research Institute is a private, nonprofit research institute based in Washington, DC, that focuses on health, savings, retirement, and economic security issues. EBRI does not lobby and does not take policy positions. Visit www.EBRI.org.

New FAQ’s from DOL for You

rcummings — Tue, 14 Feb 2012 01:33:02 +0000

It wasn’t all about the Summary of Coverage documents last Thursday. The Departments of Labor, HHS and Treasury also issued new guidance on frequently asked questions by employers and health plans concerning the auto-enrollment, employer requirements and waiting periods in PPACA. The agencies have asked for comments on the new guidance, which is due by April 9. NAHU plans to submit a letter on behalf of the whole association, and we also anticipate that our Employers for Flexibility In Health Care coalition will submit detailed comments as well.

For those of you who like who prefer the Cliff Notes version rather than reading the seven detailed questions and their answers, here is a run down of some of the key points made in the document.

Don’t worry about auto-enrollment any time soon.

”The Department of Labor has concluded that its automatic enrollment guidance will not be ready to take effect by 2014.”

What do employers have to do to determining if their coverage is “affordable” or not (a.k.a. whether or not the employee is allowed to drop employer coverage and go seek individual subsidized coverage through a state exchange)?

The document states that “Treasury and the IRS intend to issue proposed regulations or other guidance permitting employers to use an employee’s Form W-2 wages (as reported in Box 1) as a safe harbor in determining the affordability of employer coverage.”

What about a look-back/stability period safe harbor for employers?

“It is anticipated that the guidance will allow look-back and stability periods not exceeding 12 months.”

If you were wondering how and when you are supposed to decide if an employee is full-time or not:

“Treasury and the IRS intend to propose an approach under which the period of time that an employer will have to determine whether a newly-hired employee is a full-time employee (within the meaning of section 4980H) will depend upon whether, based on the facts and circumstances, (a) the employee is reasonably expected as of the time of hire to work an average of 30 or more hours per week on an annual basis and (b) the employee’s first three months of employment are reasonably viewed, as of the end of that period, as representative of the average hours the employee is expected to work on an annual basis.”

Employers are not required to offer coverage to part-time employees.

When does the benefit waiting period clock begin to tick?

“The 90-day waiting period begins when an employee is otherwise eligible for coverage under the terms of the group health plan.”

What is the interaction between 90-day wait periods and employer penalties?

“The upcoming guidance is expected to provide that, at least for the first three months following an employee’s date of hire, an employer that sponsors a group health plan will not, by reason of failing to offer coverage to the employee under its plan during that three-month period, be subject to the employer responsibility payment under Code section 4980H