2017: Fourth Quarter Compliance Bulletins Released October-December

2017: Fourth Quarter
Compliance Bulletins Released October-December
Compliance Digest
October
New Executive Order and Insight on the Employer Mandate
10/13/2017 4
Trump Halts Cost-Sharing Reductions
10/13/2017 7
New Exemptions Affect Contraceptive Services
10/18/2017 9
2018 Cost of Living Adjustments
10/23/2017 13
New York Stop-Loss Legislation Passed
10/31/2017 16
November
IRS FAQs on 2015 Employer Penalty Payments
11/08/2017 18
Guidance Issued on QSEHRAs
11/21/2017 22
December
Received Letter 226J: Now What?
12/19/2017 25
Extension of Deadline for 2017 Forms 1095-C
12/28/2017 37
Congress Passes Tax Reform Bill
12/28/2017 39
2017 Compliance Bulletins
2 | 2017 Compliance Digest: Fourth Quarter
This document is designed to highlight various employee benefit matters of general
interest to our readers. It is not intended to interpret laws or regulations, or to address
specific client situations. You should not act or rely on any information contained
herein without seeking the advice of an attorney or tax professional.
© Emerson Reid, LLC. All Rights Reserved.
CA Insurance License 0C94240
New Executive Order
and Insight on the
Employer Mandate
President Trump signed an Executive Order (“EO”) on October 12, 2017, directing
various federal agencies to take regulatory action that will “increase health care
choices for millions of Americans.”
Along with the EO, the Administration issued a press release and some internal
talking points that provide helpful insight into what the agencies are directed to
review.
As it affects employer-sponsored plans:
• The Department of Labor (“DOL”) is directed to consider expanding access
to Association Health Plans (“AHPs”) which could allow employers to form
groups across state lines. Specifically, by taking a broader interpretation of
ERISA, employers in the same line of business anywhere in the country
could join together to offer healthcare coverage to their employees through
the large group insurance market or through self-insurance, potentially
accessing more coverage options at a lower cost. Such arrangements
could be formed for the “express purpose” of offering group insurance
(under current regulations, the sole purpose of any association plan cannot
be the purchase of group insurance).
• Within 60 days, the DOL shall consider proposing regulations or revising
guidance consistent with the law, to expand access to health coverage
by allowing more employers to form AHPs. The EO directs the agency
to consider expanding the conditions that satisfy the “commonality-ofinterest”
requirements under the existing definition of an “employer”
under ERISA 3(5).
• The EO continues to support popular ACA mandates, including offering
coverage to children to age 26, no annual or lifetime dollar limits, no
cost-sharing for certain preventive care, and a general prohibition on
preexisting condition exclusions and health status rating.
Published: October 13, 2017
2017 Compliance Digest: Fourth Quarter | 5
New Executive Order and Insight on the Employer Mandate October 13, 2017
• The EO specifically references using
self-insurance as an option of AHPs. Because the
current federal law permits association coverage
to be governed under both state and federal rules,
the EO raises issues in those states that either (1)
prohibit creation of new self-insured association
plans or (2) heavily regulate the ability to use
self-insurance as an option under multiple
employer welfare arrangement (“MEWA”) rules.
• The Departments of the Treasury, Labor, and Health
and Human Services (“the Departments”) are to,
within 60 days of the EO, consider proposing rules
to expand coverage through low-cost short-term
limited duration insurance (“STLDI”). It appears this
coverage would be available in the individual market,
primarily targeting individuals who are between jobs
(as a lower cost alternative to COBRA), individuals
in counties with only a single carrier option in the
Marketplace, people with limited networks and those
who missed annual Marketplace open enrollment but
still want to purchase coverage. STLDI would not be
subject to many of the insurance mandates under the
ACA but would feature broad provider networks and
high coverage limits.
• Within 120 days of the EO, the Departments
are to consider additional changes that support
more flexibility and increased usability of Health
Reimbursement Arrangements (“HRAs”), including
use with nongroup health insurance coverage.
What’s Next?
An EO is a statement issued by the President to the federal
agencies directing priorities and action on specific matters.
Such policies generally do not have the effect of creating a
new law or regulations.
The agencies will review the EO in context with the existing
statutory and regulatory framework to determine how they
can enact regulations or issue other guidance within the
constraints of existing law. The Departments are likely to
initially issue proposed regulations as the starting point for
addressing the goals of the EO. However, the regulatory
process is slow and its unlikely any final rules will be issued
before 2018.
Specifically, with respect to AHPs, these arrangements
are unique under ERISA as there is joint federal and state
authority for governance. Creating a more flexible AHP
marketplace, including crossing state lines, will bump up
against various state insurance laws that may prohibit these
types of transactions. Many states’ insurance commissions
and state governments have already announced their intent
to challenge any federal overreach into a long-established
tradition of state regulation of the insurance market.
In Other News: The Individual and Employer Mandates
6 | 2017 Compliance Digest: Fourth Quarter
The talking points contain a number of Q&As. Notably,
when asked whether the Administration intends to enforce
the Individual and Employer Mandate, the Administration
responded as follows:
“The administration believes Congress should repeal the
individual and employer mandates, and respective penalties
enforced by the IRS on people who fail to purchase
Washington-approved coverage and employers with at least
50 workers that fail to offer Washington-approved coverage.
While HHS has the ability to define a hardship exception for
the purpose of the individual mandate, the tax penalties are
contained in the Internal Revenue Code and only Congress
can change the law.”
Therefore, it is notable to employers that, absent
Congressional action, the Trump administration appears
(at least based on these informal statements) willing to
enforce the Employer Mandate.
Employer Action
Employers should:
• Be aware that we are likely to see new regulations
addressing AHPs, HRAs, and STLDIs in the coming
months. While changes to existing AHP and HRA
rules are unlikely to affect 2018 plan years, such
guidance may create challenges for 2019 and
beyond.
• As the Administration signaled its intent to enforce the
Employer Mandate:
• Plan for compliance with the 2017 ACA reporting.
The final Form 1094-C, Form 1095-C and
Instructions are available.
• Prepare to address any notices issued by the IRS
regarding Employer Mandate assessments for the
2015 and 2016 calendar year.
Trump Halts
Cost-Sharing Reductions
Overview
On Thursday, October 12, 2017, the White House indicated that President Trump will
end ACA cost-sharing reduction (“CSR”) payments to insurance companies effective
immediately. This was followed up by a White House statement indicating that the
payments had lacked appropriations and therefore the government could not lawfully
continue making them. While the impact to insurance companies and individuals who
obtain subsidized coverage in the Marketplace is expected to be significant, the direct
impact to employers and employer sponsored health plans is expected to be minimal.
CSR Payments Explained
Under the ACA, Congress authorized two types of subsidy payments to help
Americans pay for and utilize health coverage in the Marketplace.
The first is premium subsidy assistance, which allows those with household incomes
between 100% and 400% of the Federal Poverty Level (FPL) to obtain subsidies that
reduce premiums costs for health coverage purchased in the Marketplace.
The second, and at issue here, is CSR payments, available to those who qualify
for premium subsidy assistance and who have incomes between 100% and
250% of the FPL. CSR payments reduce the cost of deductibles, co-pays,
and other means of cost sharing by directly reimbursing insurers for those costs.
Roughly 7 million people are currently receiving CSR payments.
CSR Controversy
In 2014, House Republicans filed a lawsuit against then-HHS Secretary Burwell
claiming that federal laws require every government expenditure to be tied to an
annual or permanent funding source. This is known as appropriations. The lawsuit
claimed that ACA legislation failed to include permanent appropriations for CSR
payments. In May 2016, the US District Court for the District of Columbia agreed,
and so absent annual approval, such payments are unlawful beginning in 2014.
The judge ordered that such payments be immediately halted (enjoined),
but stayed its decision (in effect, made it not applicable) pending appeal.
Published: October 13, 2017
2017 Compliance Digest: Fourth Quarter | 7
8 | 2017 Compliance Digest: Fourth Quarter
The government had been issuing CSR payments until
today’s announcement.
President Trump’s Decision
The President announced that the government will no
longer issue CSR payments and that such payments
would be halted immediately (the Marketplace plan year
runs through December 31). The immediate impact of this
decision will affect insurance companies in the Marketplace,
as presumably they will not be reimbursed for CSR
payments for November and December 2017. Under the
terms of Marketplace agreements, insurance companies
can withdraw immediately if government payments or
subsidies are halted. If this happens, many individuals
could suddenly find themselves without coverage.
Additionally, for the 2018 calendar year, carriers will not
receive CSR payments from the government. This will
lead to higher costs and individuals choosing to forgo
Marketplace coverage as it has become too expensive.
In fact, many carriers filed their 2018 rates assuming the
Government would pull funding for the CSR payments,
leading to significant rate increases in the individual market.
Implications for Employers
The direct impact of this decision is minimal.
Applicable large employers (“ALE”) – those with 50 or
more full time equivalent employees – are subject to ACA
employer shared responsibility “A” or “B” penalties for failure
to offer affordable and/or minimal value coverage to full-time
employees, if one or more of those employees obtain a
subsidy or CSR in the exchange.
Even if CSRs are eliminated, since a prerequisite to an
individual obtaining a CSR subsidy is to qualify for a
premium reduction subsidy, there should be no change
to an ALE’s “A” or “B” penalty exposure since premium
reduction subsidies are not impacted by this White House
decision.
Further, since an ALE must make an offer of affordable
and minimum value coverage in order to avoid “A” or “B”
penalties, we do not anticipate a significant increase in
employees forgoing coverage in the Marketplace and
enrolling in employer sponsored plans (since those
individuals would generally have been ineligible for
Marketplace subsidies due to the employer’s offer of
affordable and MV coverage in the first place).
Additionally, if carriers exit the Marketplace or otherwise
cancel plans in light of this change in policy, employers
may see an increase in requests for special enrollment
in their group health plans due to the loss of eligibility for
Marketplace coverage.
The indirect implications are less clear. Stopping CSR
payment will make individual insurance more expensive in
the Marketplace. This may lead to carriers dropping out of
the Marketplace, or if they remain, pricing plans beyond the
reach of those individuals who previously benefited from
CSR payments. This will likely result in an increase in the
uninsured population. All payers in the health care system
are affected by higher costs when there is a high uninsured
population receiving uncompensated care.
Next Steps
The White House has indicated a desire to work with
Congressional leaders to find a bipartisan fix for health
reform. Since the collapse of health reform legislation late
last month, there does not appear to be much appetite or
political will to find a permanent solution. However, with the
termination of CSR payments, it is possible a temporary or
permanent fix could yet again be considered.
New Exemptions Affect
Contraceptive Services
On October 6, 2017, the U.S. Departments of Health and Human Services,
Labor, and the Treasury (the Departments) released final, interim regulations
allowing non-governmental employers, institutions of higher education, and
individuals with religious or moral objections to cease coverage for some, or all,
contraceptive services.
Background
All non-grandfathered health plans must cover certain preventive items and
services without cost-sharing, including contraceptive services.
Religious employers and grandfathered medical plans are exempt from the
contraceptive services mandate.
An accommodation (which is different from the blanket exemption) is available for
certain non-profits with religious objections to providing contraceptive services
and a certain closely held for-profit entities.
For this purpose, contraceptive services are defined to include contraception and
contraceptive counseling, including all FDA-approved contraceptive methods,
sterilization procedures and patient education and counseling.
New Regulations
As described below, the new regulations, effective October 6, 2017, largely
expand exemptions to include more employers and extend to individuals.
The regulations also revise the existing accommodations process making it
optional, but still available.
Expanded exemptions – Employers
Non-governmental employers sponsoring a group health plan and objecting
to providing some (or all) of the mandated contraceptive services based on
seriously held religious beliefs or moral convictions may claim an exemption.
The rules do not specifically define what constitutes a “sincerely held religious
Published: October 18, 2017
2017 Compliance Digest: Fourth Quarter | 9
10 | 2017 Compliance Digest: Fourth Quarter
belief” or “moral convictions.” Instead, the Departments will
look to such beliefs, principles or views that would have
been adopted and documented in accordance with the laws
of the state in which they are incorporated or organized.
The regulations provide the following non-exhaustive
list of employers who may claim an exemption because
they object to the provision of some, or all, contraceptive
services based on sincerely held religious beliefs:
• A church, an integrated auxiliary of a church,
a convention or association or churches or a religious
order.
• A nonprofit organization.
• A closely-held for profit entity.
• A for-profit entity that is not closely held
(this may include a publicly traded company).
• Any other non-governmental employer.
• An institution of higher education in its arrangement
of student health insurance coverage.
With respect to the moral convictions exemption, the
following are permissible objecting entities:
• A nonprofit organization.
• A for-profit entity that has no publicly traded
ownership interest.
• An institution of higher education in its arrangement
of student health insurance coverage.
• A health insurance issuer offering group or individual
insurance coverage.
Exempt entities:
• May object to covering some, or all, mandated
contraceptives services. For example, an entity may
object to sterilization but not contraceptives. In that
case the entity is exempt with respect to the items to
which they object (sterilization), but not exempt with
respect to the items for which there is no objection
(contraceptives).
• Are not required to comply with the self-certification
process (e.g., do not need to file notices or
certifications of their exemption). Plan documents will
need to be updated to reflect changes in coverage or
design.
• May have previously claimed an accommodation and
are now eligible for an exemption under these new
rules.
• May, instead, choose to certify as an eligible
organization which would remove the employer and
the plan from responsibility and cost of contraceptive
services while still providing participants and
beneficiaries access to these services at no cost.
Expanded exemptions – Individuals
The individual exemption permits (but does not
require) plan sponsors that do not specifically object
to contraceptive coverage to offer coverage to their
participants or beneficiaries who do object based on
religious belief or moral conviction, while offering coverage
that includes contraception to participants or subscribers
who do not object. This exemption can apply with respect
to individuals with coverage through a private employer or
government sponsored group health plan.
The individual exemption cannot be used to force a plan
(or its sponsor) or a carrier to provide coverage omitting
contraception, or, with respect to health insurance
coverage, to prevent the application of state law that
requires coverage of such contraceptives or sterilization.
Practical Application
• Effect on participants. As exempt entities will
exclude contraceptive services from their group
health plan, female participants and beneficiaries will
not be able to access these services from the group
health plan and will either need to pay out-of-pocket
or seek access through other resources.
2017 Compliance Digest: Fourth Quarter | 11
New Exemptions Affect Contraceptive Services October 18, 2017
• Accommodations remain available. The regulations
leave intact the accommodations process for certain
objecting employers to claim an accommodation
versus an exemption. Under this process, the
objecting employer can self-certify eligible employer
status which documents their objection to providing
some, or all, contraceptive services. The eligible
organization provides this certification to the
applicable carrier or TPA who then arranges access
to the contraceptive services for participants and
beneficiaries without cost sharing and at no additional
cost to the employer or plan.
• Plan documentation. While entities claiming an
exemption are not required to provide a special
notice or certification, general ERISA rules apply with
respect to material changes to coverage.
This is further discussed in “Employer Action”.
• Moral conviction of health insurance carriers.
While expected to be unusual, an insurance carrier
providing group health insurance coverage may be
exempt due to the carrier’s moral conviction.
The plan remains subject to any requirement to
provide coverage for contraceptive services unless
the plan is otherwise exempt (due to religious belief
or moral conviction). This can create coordination
and compliance issues for non-exempt employer plan
sponsors if group health plan coverage is purchased
from an exempt insurer.
Employer Action
Employers wanting to avail themselves of this exception will
need to:
• Amend their summary plan descriptions and
any other plan documents, as necessary, for a
prospective effective date:
• A best practice would be to make a plan
amendment in connection with annual enrollment
(and not mid-year).
• Immediate plan changes must be approved by
carriers and likely will only be available to
self-funded plans.
• For insured plans:
• Insurers may offer an exclusion of
contraception to requesting employers.
• Insurers can also claim exemption and not offer
contraception to any employer in which case
employers purchasing their plans will be out of
compliance unless they too claim exemption.
12 | 2017 Compliance Digest: Fourth Quarter
• State insurance law requiring coverage
for certain contraceptive services are not
preempted by this guidance and remain
enforceable.
• Provide proper notice under existing rules. Under
ERISA:
• For health plans, a summary of material reduction
should be distributed automatically to participants
within 60 days of adoption of material reduction in
services or benefits or at regular intervals of not
more than 90 days. Although somewhat of a gray
area, this should mean that employees hear about
the change at least 60 days in advance. Although
inadequate notice can result in penalties, it will
rarely invalidate the change.
• Review your SBC to determine if information
on this document changes as a result of the
exemption. If so, and if implemented mid-year
60-day prior notice is required and will satisfy the
other requirements under ERISA.
• For any ERISA-covered plan, it may be advisable
to give written notice early under regular fiduciary
duty principles.
• Any description of exceptions, limitations,
reductions, and other restrictions of plan benefits
must be apparent in the SPD.
• Consider HR and PR challenges when revoking a
benefit that has been available to female employees
for free for a number of years. A thoughtful
communication strategy will be important when
making this type of change.
• Non-exempt entities should consider whether to
make alternative coverage without contraceptive
services available to participants and beneficiaries
who qualify for an individual exemption. This will be
administratively burdensome and may not necessarily
be an available option from the carrier.
These rules are subject to change following the comment
period which closes on December 5, 2017 but any
significant changes appear to be unlikely.
Already, several states and interest groups have, or have
expressed their intent to, initiated a lawsuit against the
government challenging these rules. Employers claiming
these exemptions should watch the legal developments as
they may affect coverage.
2018 Cost of Living
Adjustments
On October 19, 2017, the IRS released cost of living adjustments for 2018 under
various provisions of the Internal Revenue Code (the Code). Some of these
adjustments may affect your employee benefit plans.
Cafeteria Plans
For plan years beginning in 2018, the dollar limitation under Section 125 for
voluntary employee salary reductions for contributions to health flexible spending
arrangements increases to $2,650.
The Affordable Care Act (ACA) amended Section 125 to place a $2,500 limitation
under Section 125(i) on voluntary employee salary reductions for contributions
to health flexible spending arrangements, subject to inflation for plan years
beginning after December 31, 2013.
Qualified Transportation Fringe Benefits
For calendar year 2018, the monthly exclusion limitation for transportation in a
commuter highway vehicle (vanpool) and any transit pass (under Code Section
132(f)(2)(A)) and the monthly exclusion limitation for qualified parking expenses
(under Section 132(f)(2)(B)) increases to $260.
The Consolidated Appropriations Act of 2016 permanently changed the pre-tax
transit and vanpool benefits to be at parity with parking benefits.
Requirement to Maintain Minimum Essential Coverage
For calendar year 2018, the applicable dollar amount used to determine the
penalty under Section 5000A(c), for failure to maintain minimum essential
coverage remains $695.
Published: October 23, 2017
2017 Compliance Digest: Fourth Quarter | 13
14 | 2017 Compliance Digest: Fourth Quarter
This is also referred to as the individual mandate under the
ACA. Any assessed penalty tax is the greater of $695 or
2.5% of modified adjusted gross income in excess of the
filing threshold and capped at the average premium amount
for bronze coverage available on the health insurance
exchange. The penalty is collected from an individual’s tax
refund due after filing their personal income tax return with
the IRS.
Highly Compensated
The compensation threshold for a highly compensated
individual or participant (as defined by Code Section 414(q)
(1)(B) for purposes of Section 125 nondiscrimination
testing) again remains unchanged at $120,000 for 2018.
Under the cafeteria plan rules, the term highly compensated
means any individual or participant who for the preceding
plan year (or the current plan year in the case of the first
year of employment) had compensation in excess of the
compensation amount as specified in Code Section 414(q)
(1)(B).
Key Employee
The dollar limitation under Code Section 416(i)(1)(A)(i)
concerning the definition of a key employee for calendar
year 2018 remains unchanged at $175,000.
For purposes of cafeteria plan nondiscrimination testing, a
key employee is a participant who is a key employee within
the meaning of Code Section 416(i)(1) at any time during
the preceding plan year.
Non-Grandfathered Plan Cost-Sharing
Limits
The 2018 maximum annual out-of-pocket limits for all
non-grandfathered plans are $7,350 for individual coverage
and $14,700 for family coverage.
These limits generally apply with respect to any essential
health benefits (EHBs) offered under the group health
plan. The final regulations established that starting in the
2016 plan year, the self-only annual limitation on cost
2017 Compliance Digest: Fourth Quarter | 15
2018 Cost of Living Adjustments October 23, 2017
sharing applies to each individual, regardless of whether
the individual is enrolled in other than self-only coverage,
including in a family HDHP.
Qualified Small Employer Health
Reimbursement Arrangements
For tax years beginning in 2018, to qualify as a qualified
small employer health reimbursement arrangement
(QSEHRA) under § 9831(d), the arrangement must provide
that the total amount of payments and reimbursements
for any year cannot exceed $5,050 ($10,250 for family
coverage).
Health Savings Accounts
As announced in May 2017, the inflation adjustments for
health savings accounts (HSAs) for 2018 were provided by
the IRS in Rev. Proc. 2017-37.
Annual contribution limitation.
For calendar year 2018, the limitation on deductions for an
individual with self-only coverage under a high deductible
health plan is $3,450. For calendar year 2018, the limitation
on deductions for an individual with family coverage under
a high deductible health plan is $6,900.
High deductible health plan.
For calendar year 2018, a “high deductible health plan” is
defined as a health plan with an annual deductible that is
not less than $1,350 for self-only coverage or $2,700 for
family coverage, and the annual out-of-pocket expenses
(deductibles, co-payments, and other amounts, but not
premiums) do not exceed $6,650 for self-only coverage
or $13,300 for family coverage.
Non-calendar year plans: In cases where the HDHP
renewal date is after the beginning of the calendar year, any
required changes to the annual deductible or out-of-pocket
maximum may be implemented as of the next renewal date.
Catch-up contribution.
Individuals who are age 55 or older and covered by a
qualified high deductible health plan may make additional
catch-up contributions each year until they enroll in
Medicare. The additional contribution, as outlined in Code
223(b)(3)(B), is $1,000 for 2009 and thereafter.
New York Stop-Loss
Legislation Passed
Governor Cuomo recently signed Assembly Bill A8264 into law, allowing
employers having 1-100 employees to continue to purchase stop-loss coverage,
catastrophic insurance and reinsurance coverage through December 31, 2019.
Background
The Affordable Care Act (“ACA”) required a change of the small group market from
1-50 to 1-100 employees. The ACA was subsequently amended by the PACE Act,
and the small group definition reverted to 1-50 employees. Prior to the PACE Act,
New York had changed the definition of small group market to 1-100 employees,
requiring legislative action to change the definition.
Stop-loss coverage, catastrophic insurance and reinsurance coverage are
generally prohibited to be sold to employers in the small group market in the State
of New York.
Prior to December 2015, the small group market was defined as an employer
having 1-50 employees. After December 2015, an employer in the small group
market became an employer with 1-100 employees. Prior Bills allowed an
employer to purchase stop-loss, catastrophic insurance or reinsurance coverage
until 2018 because the employer was in the large group market as of January
1,2015 or June 1, 2015. Employers that are part of a municipal cooperation or
school do not have to be treated as small group market employers if a policy or
coverage was in effect as of January 1, 2015 or June 1, 2015.
Published: October 31, 2017
2017 Compliance Digest: Fourth Quarter | 17
New York Stop-Loss Legislation Passed October 31, 2017
New Legislation
A8264 provides the review of the prohibited sale products
within the small group market and extends the purchase
of prohibited coverage until 2019. Under this legislation,
an employer that was permitted to purchase stop-loss
coverage, catastrophic insurance or reinsurance coverage
because the employer was in the large group market as of
January 1, 2015 or June 1, 2015 may continue to purchase
such coverage until 2019.
It is important to note that the definition of small group
market has not changed. In New York, a small group
continues to be an employer with 1-100 employees.
A review of the law will be completed by spring 2018. We
will keep you apprised of any changes.
For a copy of the Bill, visit:
https://www.nysenate.gov/legislation/bills/2017/a8264
IRS FAQs
on 2015 Employer
Penalty Payments
Recently, the Internal Revenue Service (“IRS”) issued additional FAQs regarding
the Employer Shared Responsibility Payment (an assessment under the
employer mandate).
Briefly, the FAQs:
• Describe a new Letter 226J that will be issued to Applicable Large
Employers (“ALEs”) if the IRS determined at least one full-time employee
(“FTE”) was enrolled in a qualified health plan for which a premium tax
credit was allowed and the ALE did not offer the FTE affordable, minimum
value coverage.
• Provide an opportunity and process for an ALE to follow and respond
to Letter 226J before any penalty assessed and notice and demand for
payment is made.
• Establish a specific notification timeframe (generally 30 days from the
date of the letter) that an ALE will have to respond to the IRS regarding
the proposed assessment. Failure to respond timely may result in the IRS
assessing the penalty and issuing a notice and demand for payment with
no further opportunity for the ALE to respond.
• Describe Notice CP 220J which will be used as formal notice and demand
for payment of a penalty.
• Suggest that, for calendar year 2015, the first Letters 226J will be issued to
ALEs in late 2017.
This update to the existing FAQs on the employer-shared responsibility
requirement offers the first real guidance on the process of notification and
assessment of any employer mandate penalties.
The IRS appears ready to move forward with this notification and assessment
process given the failure of ACA repeal and absent other rulemaking, guidance,
or legislation that further delays enforcement of the mandate.
Published: November 8, 2017
2017 Compliance Digest: Fourth Quarter | 19
IRS FAQs on 2015 Employer Penalty Payments November 8, 2017
Recently, however, new legislation has been introduced in
the House and Senate that would suspend the employer
mandate for the period before January 1, 2018. Whether
Republican leadership can secure enough votes to pass
another attempt at a party-line repeal remains uncertain.
The following provides additional details, including an
explanation of the various letters and notices that an ALE
may receive as part of this process. Copies or samples of
these letters are not currently available on the IRS website.
Background
Beginning in 2015, ALEs may be subject to an assessable
payment (referred to as a “penalty”) if any FTE receives
a premium tax-credit (a “subsidy”) to purchase health
insurance through the Marketplace. There are two possible
penalties (“A” and “B”). The penalty that may apply will
depend on the circumstances of the ALE.
While ALEs are generally defined as employers with at
least 50 FTEs (including full-time equivalent employees
and employees under common ownership) in the preceding
calendar year, for 2015 only (and plan years that begin 2015)
the IRS provided helpful relief generally excluding ALEs with
50-99 FTEs from penalty assessments, subject to specific
rules.
The 2015 Penalties
• “A” Penalty – “No Coverage” Penalty.
This penalty applies when an ALE does not offer
at least 70% of FTEs and their dependent children
minimum essential coverage and at least one FTE
receives a subsidy in the Marketplace to purchase
qualified health plan coverage.
• The penalty is $173.33/month (or $2,080/year)
multiplied by the total number of FTEs – 80.
• “B” Penalty – “Offer Coverage Penalty”.
This penalty applies when an ALE offers at least
70% of FTEs and their dependent children minimum
essential coverage but the coverage is not affordable,
does not provide minimum value or excludes 30% or
fewer FTEs and one (or more) of those FTEs receive
a subsidy in the Marketplace.
• The penalty is the lesser of:
• $260/month (or $3,120/year) multiplied by the
total number of FTEs who receive a subsidy; or
• The “A” penalty.
The above rules are somewhat different for years after
2015 and are not addressed in this summary.
MAKING A SHARED RESPONSIBILITY PAYMENT (FAQS
55 – 58)
20 | 2017 Compliance Digest: Fourth Quarter
Q1: How does an employer know that it
owes an employer shared responsibility
payment?
The IRS will use Letter 226J to describe the general
procedures it will use to propose and assess an employer
penalty. Letter 226J will be issued to an ALE if the IRS
determines that, for at least one month in the year, one or
more of the ALE’s FTEs was enrolled in a qualified health
plan (i.e. individual Marketplace plan) for which a premium
tax credit was allowed (and the ALE did not qualify for an
affordability safe harbor or other relief for the employee).
Letter 226J will include:
• a brief explanation of the employer mandate (Code
Section 4980(H));
• an employer shared responsibility payment summary
table itemizing the proposed payment by month
and indicating for each month if the liability is an “A”
penalty or a “B” penalty, or neither;
• an explanation of the employer shared responsibility
payment summary table;
• an employer shared responsibility response form,
Form 14764, “ESRP Response”;
• an employee PTC list, Form 14765, “Employee
Premium Tax Credit (PTC) List” which lists, by
month, the ALE’s assessable FTEs, and the
indicator codes, if any, the ALE reported on lines 14
and 16 of each assessable FTE’s Form 1095-C;
• a description of the actions the ALE should take if
it agrees or disagrees with the proposed employer
shared responsibility payment in Letter 226J; and
• a description of the actions the IRS will take if the
ALE does not respond timely to Letter 226J.
Employers that receive a Letter 226J must respond by
the date shown on the letter (usually within 30 days from
the date of the letter). The Letter 226J will include contact
information of a specific IRS employee that the ALE may
contact with questions.
Q2: Does an employer that receives a
Letter 226J proposing an employer
shared responsibility payment have
an opportunity to respond to the IRS
about the proposed payment, including
requesting a pre-assessment conference
with the IRS Office of Appeals?
Yes.
ALEs will have an opportunity to respond to Letter 226J
before any penalty is assessed and notice and demand for
payment is made. Letter 226J contains instructions for how
the ALE should respond in writing, either agreeing with
the proposed employer shared responsibility payment or
disagreeing with part (or all) of the proposed amount.
• The IRS will acknowledge the ALE’s response to
Letter 226J with an appropriate version of Letter
227 (a series of five different letters that, in general,
acknowledge the ALE’s response to Letter 226J and
describe further actions the ALE may need to take).
• If, after receipt of Letter 227, the ALE disagrees
with the proposed or revised employer shared
responsibility payment, the ALE may request a
pre-assessment conference with the IRS Office of
Appeals. The ALE should follow the instructions
provided in Letter 227 and Publication 5, Your Appeal
Rights and How To Prepare a Protest if You Don’t
Agree for requesting a conference. A conference
should be requested in writing by the response date
shown on Letter 227 (generally will be 30 days from
the date of Letter 227).
If the ALE fails to respond to either Letter 226J or
Letter 227, the IRS will assess the amount of the
proposed employer shared responsibility payment and
issue a notice and demand for payment, regardless of
actual liability.
Employer Action
ALEs should:
• For now, keep an eye out for the new Letter 226J in the
mail. Be mindful of the timeline to respond to the notice.
• Ensure they have records reflecting offers of coverage
to identified FTEs for CY 2015. This will include copies
of the Forms 1094-C and 1095-C that they filed. These
Forms will be helpful when reviewing any IRS notice
in determining whether an assessment is correct.
• Contact their tax advisor for assistance if they receive
the letter and have questions. Please note that we
cannot represent clients in this process.
Q3: How does an employer make an employer
shared responsibility payment?
If, after correspondence between the ALE and the IRS or
a conference with the IRS Office of Appeals, the IRS or
IRS Office of Appeals determines that an ALE is liable for
an employer shared responsibility payment, the IRS will
assess the employer shared responsibility payment and
issue a notice and demand for payment, Notice CP 220J.
Notice CP 220J will include a summary of the employer
shared responsibility payment and will reflect payments
made, credits applied, and the balance due, if any. That
notice will instruct the ALE how to make payment.
ALEs will not be required to include the employer shared
responsibility payment on any tax return that they file or
to make payment before notice and demand for payment.
For payment options, such as entering into an installment
agreement, refer to Publication 594, The IRS Collection
Process.
Q4: When does the IRS plan to begin
notifying employers of potential employer
shared responsibility payments?
For the 2015 calendar year, the IRS plans to issue Letter
226J informing ALEs of their potential liability for an
employer shared responsibility payment, if any, in late 2017.
The FAQs do not address when notification regarding
assessments in calendar year 2016 and 2017 will happen.
Further guidance expected.
IRS FAQs on 2015 Employer Penalty Payments November 8, 2017
2017 Compliance Digest: Fourth Quarter | 21
Guidance
Issued on QSEHRAs
The IRS recently issued Notice 2017-67 which provides guidance related to the
administration of Qualified Small Employer Health Reimbursement Arrangements
(QSEHRAs).
Background
Under the Affordable Care Act, a health reimbursement arrangement (HRA) must
be integrated with a group health plan (as it could not meet the market reform
provisions on its own) and was not able to reimburse employees for individual
premiums. However, on December 13, 2016, President Obama signed into law the
“21st Century Cures Act” which established QSEHRAs (a special standalone HRA).
According to the 21st Century Cures Act, a QSEHRA is an arrangement that
meets the following criteria:
1. The arrangement is funded solely by an eligible employer (less than 50
full-time employees (including full-time equivalent employees) in the preceding
calendar year not offering a group health plan to any of its employees);
2. The arrangement provides, after the eligible employee provides proof of
coverage, for the payment or reimbursement of the medical expenses
incurred by the employee or the employee’s family members;
3. The amount of payments and reimbursements described above cannot
exceed certain thresholds ($5,050 self-only/$10,250 for family coverage for
2018); and
4. The arrangement is generally provided on the same terms to all eligible
employees of the eligible employer.
On October 17, 2017, President Trump issued an Executive Order directing
federal agencies to revise guidance to increase the usability of HRAs, expand
employers’ ability to offer HRAs to their employees, and allow HRAs to be used
in conjunction with non-group coverage. The authors of Notice 2017-67 claim that
the guidance therein addresses each of those objectives.
Published: November 21, 2017
New Guidance
Notice 2017-67, structured as 79 Questions and Answers
(Q&As), explains several specifics related to QSEHRAs.
Here are some of the highlights:
• Eligible employer (Q&As 1-7):
• The 50-employee threshold and whether the
employer offers a health plan takes into account
the entire controlled group.
• An employer that goes over this threshold is not
an eligible employer as of January 1st of the
year it becomes an applicable large employer in
accordance with ACA rules.
• An employer will fail to be an eligible employer
for any month during which it offers a group
health plan, allows continued access to amounts
accumulated from a prior HRA or carried over in
an FSA.
• Offering a health plan to former employees
or contributing to employees’ HSAs (including
allowing HSA contributions through a cafeteria
plan) will not prevent an employer from being an
eligible employer.
• Eligible employee (Q&As 8-11):
• A QSEHRA may only be provided to employees
(not former employees, retirees, or non-employee
owners).
• If a previously ineligible employee becomes an
eligible employee, coverage must be provided by
the next day.
• Participation in the QSEHRA cannot be waived.
• Same terms requirement (Q&As 12-26): A QSEHRA
must be operated on a uniform and consistent basis
with respect to all eligible employees.
• A permitted design includes one that offers the
same dollar amount benefit whether self-only or
family coverage is elected.
• It is also permitted to structure a plan to reimburse
up to the self-only and family statutory limits or up
to an equal percentage thereof without referring to
a baseline policy.
• Statutory dollar limits (Q&As 27-34):
• Statutory dollar limits for non-calendar year or
short plan year QSEHRAs are prorated based
upon the number of months in the applicable
calendar year. The same prorating would apply as
to a newly eligible employee added mid-year.
• A carryover is permitted, but only if the annual
amount available to the employee does not exceed
the threshold for that year, taking into account the
carryover.
• Written notice requirement (Q&As 35-39): An eligible
employer that provides a QSEHRA during 2017
or 2018 must furnish the initial notice to eligible
employees by the later of February 19, 2018 or 90
days before the first day of the plan year.
• MEC requirement (Q&A 40): Reimbursements
through the QSEHRA are taxable for any month
that minimum essential coverage (MEC) is not
maintained.
• Proof of MEC requirement (Q&As 41-43): A QSEHRA
may only provide reimbursements after proof of
coverage is provided. Such proof, which must be
provided annually, can be third-party documentation
(i.e., an insurance card) accompanied by an
attestation or an attestation accompanied by the date
coverage began and the name of the provider. If this
proof is not provided, a reimbursement cannot be
made, even on a taxable basis. A model attestation is
provided as an Appendix to the Notice.
Guidance Issued on QSEHRAs November 21, 2017
2017 Compliance Digest: Fourth Quarter | 23
24 | 2017 Compliance Digest: Fourth Quarter
• Substantiation requirement (Q&As 44-45):
The eligible employee will follow substantiation
requirements if it complies with the FSA
substantiation requirements.
• Reimbursement of medical expenses (Q&As 46-56):
• A QSEHRA cannot provide a cash-out of unused
permitted benefits at the end of the year.
• It cannot impose a deductible or other costsharing
requirement.
• It cannot reimburse amounts incurred before
QSEHRA coverage begins.
• A QSEHRA can reimburse over-the-counter drugs
without a prescription.
• Reporting requirement (Q&As 57-64): Any benefit
provided through the QSEHRA must be reported on
the employee’s Form W-2.
• Coordination with the Premium Tax Credit (Q&As 65-
71): If an employee is provided QSEHRA coverage
for a coverage month, the premium tax credit
allowable is reduced by 1/12 of the permitted benefit
under the QSEHRA for the year.
• Failure to satisfy the requirements to be a QSEHRA
(Q&As 72-74): Plans that operate as QSEHRAs
but fail to satisfy the requirements to be QSEHRAs
will result in all amounts paid under the plan being
includable in each employee’s gross income and
wages.
• Interaction with HSA requirements (Q&As 75-78):
A QSEHRA that is structured to only reimburse
premiums will not jeopardize HSA-eligibility.
• Effective date (Q&A 79): The guidance provided in
Notice 2017-67 is effective for plan years beginning on
or after November 20, 2017 (but can be relied on by
plans established before that date). Nevertheless, if
an eligible employer has established a QSEHRA and
operated it consistent with the statutory provisions
(but not with this guidance), the employer may
continue to operate it in such a manner until the last
day of the plan year that began in 2017.
For Notice 2017-67, visit:
https://www.irs.gov/pub/irs-drop/n-17-67.pdf
Received Letter 226J
Now What?
The IRS issued Letter 226J to certain Applicable Large Employers (“ALEs”). This
letter describes the proposed Employer Shared Responsibility Payment (“ESRP”)
owed for calendar year 2015.
Letter 226J provides specific information on the ESRP and instructions for
responding to the proposed assessment. The IRS will issue a Notice and
Demand for payment of the proposed assessment (as the final amount) if the
ALE fails to timely respond to Letter 226J. If an employer disagrees with the
assessment, timely responding via Form 14764 and including a statement
explaining the objections and any back up documentation is crucial.
ALEs that receive these letters should carefully review them. It will be important
to have 2015 Forms 1094-C and 1095-C available as you work through the
information. Other materials may be relevant as well, including documentation
regarding employee eligibility, affordability and minimum value of employersponsored
coverage and/or copies of employee waiver forms.
This summary is intended to explain the information contained in Letter 226J and
to provide general guidance on these requirements.
Background
Beginning in 2015, ALEs may be subject to an ESRP (also referred to as a
“penalty”) if any ACA full-time employee (“ACA FTE”) receives a premium taxcredit
(“PTC”) to purchase health insurance through the Marketplace. There are
two possible penalties (“A” and “B”). The penalty that may apply will depend on the
circumstances of the ALE. A more detailed discussion of ESRP calculation and
assessments is available later in this summary.
“A” Penalty – “No Coverage” Penalty
• This penalty applies when an ALE does not offer at least 95% (70% for
2015) of ACA FTEs and their dependent children minimum essential
coverage (“MEC”) and at least one ACA FTE receives a subsidy in the
Marketplace to purchase qualified health plan coverage.
Published: December 15, 2017
2017 Compliance Digest: Fourth Quarter | 25
26 | 2017 Compliance Digest: Fourth Quarter
• For 2015, the penalty is $173.33/month (or $2,080/
year) multiplied by the total number of ACA FTEs –
80.
“B” Penalty – “Offer Coverage” Penalty
• This penalty applies when an ALE offers at least
95% of ACA FTEs and their dependent children MEC
but the coverage is not affordable, does not provide
minimum value or excludes 5% (30% for 2015) or
fewer ACA FTEs and one (or more) of those ACA
FTEs receive a subsidy in the Marketplace.
• For 2015, the penalty is the lesser of:
• $260/month (or $3,120 annually) multiplied
by each ACA FTE who receives a subsidy in
the Marketplace to purchase health insurance
coverage; or
• the “A” penalty.
Transition relief may be available to certain employers for
calendar year 2015 (and for non-calendar year 2015 plans
that ended in 2016).
• Subject to certain rules, ALEs with 50-99 full-time
employees are not subject to ESRP (however, these
ALEs were required to report information to the IRS
on Forms 1094-C and 1095-C).
• ALEs with at least 100 ACA FTEs avoid the “A” penalty
if an offer of coverage was made to at least 70% of
ACA FTEs (and their dependents). Additionally, if
subject to the “A” penalty (e.g., offered coverage to
50% of ACA FTEs), the ALE may exclude the first 80
ACA FTEs (as opposed to 30) when calculating the
assessment.
• Non-calendar year plans were not subject to any
penalty assessment until the first day of the 2015
plan year assuming, at that time, there was an offer
of affordable and minimum value coverage to all ACA
FTEs (and their dependents).
Beginning with calendar year 2015 (and each calendar
year thereafter), ALEs are responsible for providing certain
information to ACA FTEs and the IRS regarding offers of
health insurance coverage. ALEs use Forms 1094-C and
1095-C to meet this requirement. Information contained in
those Forms is used to determine eligibility for individual
premium tax credits as well as the application of an ESRP.
For every calendar year, Forms 1095-C are provided to ACA
FTEs (generally by January 31 of the following year) and
Forms 1094-C and 1095-C provided to the IRS (generally
March 31 of the following year unless filing fewer than 250
Forms, then February 28). This is the case regardless of an
employer’s plan year.
Letter 226J
The first page of the letter provides a general overview of the
Employer Shared Responsibility rules and contains some
important information:
• Tax year to which the letter applies, generally 2015.
• The date of the letter. This is important as the ALE
must respond within 30 days. Many of the letters were
issued mid-November 2017.
• A contact name, phone number and fax number for a
person at the IRS responsible for the specific letter.
• The response date. This date is important. It is 30
days from the date the letter is issued. Many of the
responses will be due in mid-December 2017. Keep
in mind that in order to consider that appeal of an
assessment, the IRS must receive the response by
this date (not just mailed on this date).
• The proposed penalty assessment. This dollar amount
is determined based on records the ALE submitted
to the IRS (i.e., Form 1094-C and Forms 1095-C for
2015) and the information submitted by the ACA FTEs
on their individual tax returns for 2015.
Letter 226J is a package of information relevant to the
proposed assessment and includes:
• An ESRP Summary Table itemizing the proposed
ESRP by month.
• Form 14764 – the ESRP Response Form.
• Form 14765 – the Employee PTC Listing.
• An envelope for submitting response to the IRS.
If the ALE AGREES with the proposed ESRP:
• Complete, sign and date Form 14764, ESRP
Response and return it to the IRS by the response
date shown on the first page of the letter.
• Include the payment amount via check or money
order. If the ALE is enrolled in the Electronic Federal
Tax Payment System (“EFTPS”), payment may be
made electronically.
• If the entire ESRP is not paid, a Notice and Demand
(essentially, a bill) for the remaining balance will be
issued.
• For additional payment options, see Publication 594 or
call the telephone number on the issued bill.
• Failure to pay the bill will result in a collections process
and interest assessed.
If the ALE DISAGREES with the proposed ESRP:
• Complete, sign and date Form 14764, ESRP
Response and return it to the IRS so that it is received
by the response date on the first page of the letter.
• Include a signed statement as to why you disagree
with part, or all, of the proposed ESRP. Documentation
may be included to support the statement.
• Make sure the statement describes corrections,
if any, that you want made to the information
reported on Forms 1094-C and 1095-C. Do not
file a corrected 1094-C with the IRS to reflect
these changes.
• Make changes, if any, on the Employee PTC Listing
using the indicator codes in the Instructions to Form
1094-C and 1095-C for the applicable tax year (i.e.,
2015). Do not file corrected 1095-Cs to report changes.
It is unclear whether you will also need to correct
prior returns or if the IRS will correct via this process.
Further guidance is needed.
Include the revised Employee PTC Listing, if
necessary, and any additional documentation
supporting the requested changes with the Form
14764, ESRP Response, and signed statement
Employee PTC Listing – Form 14765
Letter 226J includes Form 14765- Employee PTC Listing
and provides a snapshot of Form 1095-C for the calendar
year 2015. Briefly, this listing
• identifies individuals the IRS believe to be ACA FTEs
of the ALE; and
• received a PTC in any month of calendar year 2015.
The IRS identifies individuals as ACA FTEs receiving the
PTC, thus triggering the ESRP. Using Form 14765, the IRS
lists out the affected individuals and months of the calendar
year. Individuals and months that are not highlighted are
triggering the assessment. You will want to carefully review
the list and determine whether any corrections to the
information is needed. Corrections are made using the
2015 indicator codes applicable to Form 1095-C. We have
included these for your reference in Appendix B, along with
links to the 2015 instructions and forms.
Corrections are not needed for any month that is highlighted.
The following example illustrates the Form 14765 Employee
PTC listing.
Received Letter 226J: Now What? December 15, 2017
2017 Compliance Digest: Fourth Quarter | 27
Employee
Name
SSN
(last 4
digits)
All 12 months
Indicator Codes
(Form 1095-C,
lines 14 and 16
combined) Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Additional Information
Attached
Mary
Smith 2233 First row as filled 1H/ 1H/ 1H/ 1H/ 1H/ 1H/ 1H/ 1H/ 1H/ 1H/ 1H/ 1H/
Mary
Smith
Second row for
corrections 1H/2A 1H/2A 1H/2A 1H/2D 1H/2D 1H/2D 1H/2D 1H/2D 1H/2D 1H/2D 1H/2D 1H/2D X
John Doe 4455 First row as filled No PTC No PTC No PTC No PTC No PTC No PTC No PTC 1H/ 1H/ 1H/ 1H/ 1H/
John Doe
Second row for
corrections
Tim Jones 6677 First row as filled 1H/ 1H/ 1H/ 1H/2A 1H/2A 1H/2A 1H/ 1H/ 1H/ 1H/ 1H/ 1H/
Tim Jones
Second row for
corrections
The grey highlights mean no penalty is assessed for these months. Months not highlighted grey reflect an ESRP. Review Forms 1095-C to
determine whether this is correct. If incorrect revise the applicable Codes
in the second row. If including additional information in support of the
correction check the additional information box.
Above is an example of corrections for “Mary Smith” in red. In this case,
Mary wasn’t hired until March 25th and she was a new hire variable
employee. Because the employer uses a 12-month initial measurement
period, the employer is correcting the Form to reflect 2A (not employed)
for Jan – Mar and then 2D for April – Dec to reflect that she is in a
limited non-assessment period and therefore not subject to a penalty.
The additional information box is checked as this employer is submitting
documentation that Mary is not an ACA FTE during 2015.
28 | 2017 Compliance Digest: Fourth Quarter
Employee Information and Calculation
This section describes how the IRS determined the ESRP
assessment for 2015. Specifically,
• The ESRP applies and is calculated on a monthly
basis and each month is a taxable period.
• The ALE may be liable for an ESRP for any month of
calendar year 2015 under either Section 4980H (a) or
(b) if it:
• Did not offer MEC to at least 70% of its ACA
FTEs (and their dependents) and at least
one ACA FTE received a PTC (4980H(a)
assessment or “A” penalty).
• Did offer MEC to at least 70% of ACA FTEs and
their dependents and at least one ACA FTE
received a PTC because (1) the coverage was
unaffordable, (2) the coverage did not provide
minimum value or (3) the ACA FTE was not
offered the coverage. (4980(b) assessment or
“B” penalty).
• The ESRP is not deductible for income tax purposes.
A summary table shows how the IRS came up with any
assessment (“A” or “B”) for each month of the calendar year.
For any month, an ALE may owe:
• no ESRP, or
• an ESRP under 4980H(a) (“A”), or
• an ESRP under 4980H(b) (“B”).
An ALE cannot be assessed both an A and B penalty in the
same month.
How to Read the ESRP Summary Table
• Column “a” shows whether (for each month of the
calendar year, as listed) the employer made an offer
of MEC to at least 70% of the ACA FTEs and their
dependents. The response will be “Yes” or “No”.
• Column “b” reflects the number of ACA FTEs the ALE
reported on the Form 1094-C. If “Yes” in any month,
this means the employer made an offer of coverage to
at least 70% of ACA FTEs.
• If the ALE failed to report the number of ACA
FTEs on the Form 1094-C Part III for the
calendar year, the IRS uses the number of
Forms 1095-C the ALE identified as submitting
on Form 1094-C, Part II Line 20.
• If the ALE failed to report the number of ACA
FTEs on the Form 1094-C Part III for any month
(or months) of the calendar year (e.g., left
November blank), the IRS uses the ACA FTE
count for the month with the greatest number of
ACA FTEs reported.
• Column “c” reflects the number of ACA FTEs that the
employer is allowed to subtract from the “A” penalty
calculation. If the employer qualified for transition
relief, this number is 80. Otherwise it is 30. In order to
claim relief, the ALE should have checked Box “C” on
Form 1094-C Part II Line 22 and entered “B” on the
Form 1094-C Part III Column “e”.
• Columns “d” and “e” provide the number of ACA FTEs
the IRS identified as receiving a PTC for at least one
month of the calendar year. Letter 226J describes
these as “assessable full-time employees” (or “ACA
FTEs”). Essentially, it is their receipt of the PTC that
triggered the proposed assessment on the ALE.
Details on each of the identified “assessable full-time
employees” can be found on the Employee PTC
Listing (Form 14765). Only one of the columns (“d”
or “e”) will be completed for a month as the employer
cannot be subject to both the “A” and “B” penalty in the
same month. Column “f” identifies whether it is the “A”
penalty (4980H(a)) or the “B” penalty (4980H(b)) that
applies to some (or all) of 2015.
• Column “g” provides the proposed ESRP for
each month of 2015 with a total annual proposed
assessment captured at the bottom of the table. This
number should match what is included as the ESRP
on the first page of Letter 226J.
Assessment of “A” or “B” Penalty
“A” penalty. The 4980H(a) ESRP applies for a month when:
• Column “a” MEC coverage offer indicator (offered to
at least 70% of ACA FTEs and their dependents) is
marked “No”; and
Received Letter 226J: Now What? December 15, 2017
2017 Compliance Digest: Fourth Quarter | 29
Important Note
Many Summary Tables have shown “No” in column “a”
even though the ALE made an offer of coverage to at
least 70% of ACA FTEs (therefore should be “Yes”).
ALEs will need to address this error in the statement
submitted with the ESRP Response. Do not try to
correct the error through the correction process for
Form 1094-C.
Practical Tip
Make sure you have your Form 1094-C from the
2015 reporting handy as you go through this letter for
accuracy. It will also help you identify whether you may
have missed certain information on some (or all) of the
months of the calendar year.
Important Note
Most ALEs will be able to use “80”. In some instances,
we have seen the IRS use “30” as opposed to “80”. This
may be due to mistakes on the Form 1094-C and can
be addressed in the statement included with the ESRP
Response (Form 14764). Do not try to correct the Form
1094-C as the response to Letter 226J.
• Column “d” has at least one (1) for that same month
(reflecting at least one ACA FTE received a PTC).
The 4980H(a) assessment is calculated by taking the
number in column “b” (the IRS ACA FTE count for the
month) and subtracting column “c” (number of ACA FTEs
the ALE can back out of its total for purposes of “A” penalty
calculation). The resulting number is then multiplied by
173.33 ($2,080/12) to arrive at the monthly ESRP.
“B” penalty. The 4980H(b) ESRP applies for a month when:
• Column “a” (offered to at least 70% of ACA FTEs and
their dependents) is marked “Yes”; and
• Column “e” has at least one (1) for that same month
(reflecting at least one ACA FTE received a PTC).
The 4980H(b) assessment for a month is calculated by
taking the number in column “e” (the number of ACA FTEs
who receive a PTC) and multiplying it by $260 ($3,120/12).
Form 14764 – ESRP Response
Regardless of whether you agree or disagree with the
proposed assessment, ALEs should timely respond to
Letter 226J. There is a phone number to call on the ESRP
Response form in the event you need additional time to
respond.
An ALE that disagrees with the proposed assessment must
submit the following:
• Form 14764 – ESRP Response,
• Signed statement, and
• Any supporting documentation.
An ALE that agrees with the proposed assessment must
submit the following:
• Form 14764, and
• Payment.
To complete Form 14764, the ALE needs the following
information.
Contact Information
• Your name
• Address
• Primary and secondary phone numbers and the best
time to call
Agreement or Disagreement with the ESRP
• Agree with the assessment. If you agree with the
proposed assessment, check the box reflecting the
agreement, print and sign your name and include the
date.
• Disagree with the assessment. If you disagree with
part (or all) of the proposed assessment, check the box
reflecting partial/total disagreement with the proposed
assessment.
Payment
This includes full or partial payment options if agreeing to the
proposed penalties. Payment can be made by check, money
order or, if participating, electronically through EFTPS.
• Include the employer ID number (EIN), the tax
year (2015) and ESRP on the payment and any
correspondence.
• Make check or money order payable to the United
States Treasury.
If you are not making a payment, for example because you
disagree with the assessment, check the box indicating no
payment.
Authorization – Optional
The ALE may authorize additional individuals to assist the
ALE with this process. ALEs must designate any authorized
individual in the ESRP Response. This may be another
30 | 2017 Compliance Digest: Fourth Quarter
person at the company, legal counsel or a tax adviser.
Please do not list us or a member of your service team as
we cannot interface directly with the IRS on your behalf.
Sign the authorization in order for the IRS to discuss and
provide information to the designated person.
Importance of Responding
If the employer does not respond by the date identified on
the first page of the letter, a Notice and Demand will be sent
for the ESRP that has been proposed and will be assessed.
The ESRP will be subject to IRS lien and levy enforcement
actions and interest will accrue from the date of the Notice
and Demand until the ESRP is paid in full.
Sample Statement Letter
We have crafted a sample statement letter that can be used
as a starting point for drafting a response disagreeing with
the proposed ESRP. The statement includes some examples
of why an ALE would disagree with the ESRP. These
examples are not exhaustive. ALEs that disagree with the
ESRP will need to include a statement explaining the reason
for the disagreement along with a completed Form 14765
and any supporting documentation in a response to the IRS.
See Appendix A for the sample.
Received Letter 226J: Now What? December 15, 2017
2017 Compliance Digest: Fourth Quarter | 31
Appendix A: Sample Statement – ESRP Response
The following is a sample response statement that may be used as a starting point to respond to the IRS when
disagreeing with an ESRP assessment. This is just a sample and does not take into account the particular facts and
circumstances of the employer’s offer of coverage (or lack thereof). Employers must carefully review the details of
the assessment and determine the reasons for disagreement. Areas that are highlighted reflect where the employer
information is needed. Our comments provide insight on where information may be found and/or examples. The examples
provided in this summary are not exhaustive and there may be situations not described in this letter which apply to a
particular employer. Employers should carefully review any Letters 226J and work with legal and tax advisors to respond
to the IRS in a timely manner.
Company Letterhead
(Insert Month, Day, Year)
Department of Treasury
Internal Revenue Service
Group 2219
7300 Turfway Road, Suite 410
Florence, KY 41042
Re: (Employer Name:)
(Employee ID Number)
(Contact ID Number)
Employer Response to Proposed ESRP
To Whom It May Concern:
This letter is being sent in response to Letter 226J dated (insert date of the letter) for Tax Year 2015.
Comment.
Should be no later than the Response Date on Letter 226J.
Comment
Located on the first page of Letter 226J.
32 | 2017 Compliance Digest: Fourth Quarter
Comment
Located on the first page of Letter 226J.
2017 Compliance Digest: Fourth Quarter | 33
(Employer Name) disagrees with the proposed Employer Shared Responsibility Payment in the amount of (insert
assessment amount) outlined in the ESRP Summary Table and submit this appeal.
(Name of Employer)
• Calendar Year Plan. Did offer minimum essential coverage to at least 70% of [Employer]’s full-time employees (and
their dependents) for all twelve months in accordance with IRC Section 4980h(a).
• Non-Calendar Year Plan. Did offer minimum essential coverage to at least 70% of [Employer]’s full-time employees
(and their dependents) from insert first day of non-calendar year plan (e.g., April 1), 2015 through December 31,
2015 in accordance with Section 4980H(a) and qualified for non-calendar year plan transition relief.
• Calendar Year Plans. Did offer minimum essential coverage to at least 70% of [Employer]’s full-time employees (and
their dependents) for all twelve months and the offer of coverage was minimum value and affordable as determined
by the [W-2 safe harbor, rate of pay safe harbor or Federal Poverty Level safe harbor] in accordance with Section
4980H(b).
• Non-Calendar Year plans. Did offer minimum essential coverage to at least 70% of [Employer]’s full-time employees
(and their dependents) from insert first day of non-calendar year plan (e.g., April 1), 2015 through December 31,
2015.
• Error on Form 1094-C. Reviewed Form 1094-C filed for Tax Year 2015 and determined that Part III, Column A
inaccurately states that minimum essential coverage was not offered to at least 70% of our full-time employees for
all twelve months [or from __________ 2015 through ________ 2015] and/or Part III, Column (a), (b), (c), or (e) was/
were inadvertently left blank. Please correct Form 1094-C, Part III as follows: insert requested corrections.
• Error(s) on Forms 1095-C. Reviewed the filed Forms 1095-C and determined that Part II, Line 14/16 [reflects an
incorrect code or was incomplete and/or did not identify the correct safe harbor]. I have updated the Employee
Premium Tax Credit (PTC) Listing on Form 14765 to reflect the correct codes.
Comment
ESRP payment amount is located on the first page of the Letter 226J and in the ESRP summary table.
Comment
The following are examples of why an employer may disagree with the ESRP. An employer’s specific reason for
disagreement will be based particular facts and circumstances unique to the employer. There may be more than
one reason for the disagreement. Employers will need to carefully draft a response disagreeing with the proposed
assessment that reflects the employer’s particular circumstances. The examples provided here are general in nature
and may not apply to a specific situation.
34 | 2017 Compliance Digest: Fourth Quarter
• Medium-sized employer relief. Reviewed Form 1094-C filed for Tax Year 2015 and determined that [Employer] was
eligible for transition relief from penalties as we employed fewer than 100 full-time employees (including full-time
equivalents) in calendar year 2014 and otherwise satisfied applicable requirements for relief. Form 1094-C Part II,
Line 22, Box C and/or Part III column (e) was/were inadvertently left blank (or other error). Please correct Form
1094-C, Part III as follows: insert requested corrections.
In support of this signed statement, please find enclosed the following:
1. Completed Form 14764, ESRP Response
2. [Revised Form 14765, Employee Premium Tax Credit (PTC) Listing]
3. Supporting documentation
Comment.
Use this space to describe the supporting documentation that is included with the response. They type of supporting
documentation will vary based on the facts and circumstances of the appeal. Following are some examples but is not
exhaustive.
• Enrollment/waiver form – to show that an offer of coverage was made and/or accepted
• SBC – to show that the plan meets minimum value
• Plan Documents (SPD/Certificate of Coverage/Booklet) – to show who is eligible for the plan and when benefit
coverage begins for new employees
• Contribution documentation (if not included on the enrollment form) – to show the amount the employee would pay
for coverage such as an open enrollment guide
• If the employer used the Rate of Pay or W-2 Affordability Safe Harbor, include either of the following: Copy of the
employee’s pay stub or the previous year’s Form W-2]
Sincerely,
[Name of contact person with title]
[Name of Employer]
2017 Compliance Digest: Fourth Quarter | 35
SERIES 1 CODES: Specify the type of coverage, if any, offered to an employee, the employee’s spouse, and the
employee’s dependents.
1A Qualifying Offer. Minimum essential coverage providing minimum value offered to full-time employee with employee
contribution for self-only coverage equal to or less than 9.56% mainland single federal poverty line (For 2015, $93.77
or less) and at least minimum essential coverage offered to spouse and dependent(s).
1B Minimum essential coverage providing minimum value offered to employee only.
1C Minimum essential coverage providing minimum value offered to employee and at least minimum essential coverage
offered to dependent(s) (not spouse).
1D Minimum essential coverage providing minimum value offered to employee and at least minimum essential coverage
offered to spouse (not dependent(s)).
1E Minimum essential coverage providing minimum value offered to employee and at least minimum essential coverage
offered to dependent(s) and spouse.
1F Minimum essential coverage NOT providing minimum value offered to employee; employee and spouse or dependent(s);
or employee, spouse and dependents.
1G Offer of coverage to employee who was not a full-time employee for any month of the calendar year (which may include
one or more months in which the individual was not an employee) and who enrolled in self-insured coverage for
one or more months of the calendar year.
1H No offer of coverage (employee not offered any health coverage or employee offered coverage that is not minimum
essential coverage, which may include one or more months in which the individual was not an employee)
1I Qualifying Offer Transition Relief 2015: Employee (and spouse or dependents) received no offer of coverage; received
an offer that is not a qualifying offer; or received a qualifying offer for less than 12 months.
SERIES 2 CODES: Safe Harbor
2A Employee not employed during the month. Enter code 2A if the employee was not employed on any day of the
calendar month. Do not use code 2A for a month if the individual was an employee of the employer on any day of
the calendar month. Do not use code 2A for the month during which an employee terminates employment with the
employer.
2B Employee not a full-time employee. Enter code 2B if the employee is not a full-time employee for the month and did
not enroll in minimum essential coverage, if offered for the month. Enter code 2B also if the employee is a full-time
employee for the month and whose offer of coverage (or coverage if the employee was enrolled) ended before the last
day of the month solely because the employee terminated employment during the month (so that the offer of coverage
or coverage would have continued if the employee had not terminated employment during the month).
2C Employee enrolled in coverage offered. Enter code 2C for any month in which the employee enrolled in health coverage
offered by the employer for each day of the month, regardless of whether any other code in Code Series 2 (other than
code 2E) might also apply (for example, the code for a section 4980H affordability safe harbor). Do not enter 2C in line
16 if code 1G is entered in the All 12 Months Box in line 14 because the employee was not a full-time employee for any
months of the calendar year. Do not enter code 2C in line 16 for any month in which a terminated employee is enrolled
in COBRA continuation coverage (enter code 2A).
2D Employee in a section 4980H(b) Limited Non-Assessment Period. Enter code 2D for any month during which an
employee is in a Limited Non-Assessment Period for section 4980H(b) (e.g., waiting periods, initial measurement
period, etc.).
2E Multiemployer interim rule relief. Enter code 2E for any month for which the multiemployer arrangement interim
guidance applies for that employee, regardless of whether any other code in Code Series 2 (including code 2C) might
also apply.
Appendix B: 2015 Form 1095-C Codes
36 | 2017 Compliance Digest: Fourth Quarter
2F Section 4980H affordability Form W-2 safe harbor
2G Section 4980H affordability federal poverty line safe harbor.
2H Section 4980H affordability rate of pay safe harbor.
2I Non-calendar year transition relief applies to this employee. Enter code 2I if non-calendar year transition relief for section
4980H(b) applies to this employee for the month.
Final forms and instructions for 2015 are available here:
• Instructions: https://www.irs.gov/pub/irs-prior/i109495c–2015.pdf
• Form 1094-C: https://www.irs.gov/pub/irs-prior/f1094c–2015.pdf
• Form 1095-C: https://www.irs.gov/pub/irs-prior/f1095c–2015.pdf
Extension of Deadline for
2017 Forms 1095-C
On December 22, 2017, the IRS issued Notice 2018-06, which provides a limited
extension of time for employers to provide 2017 Forms 1095-C to individuals.
It also extends good-faith transition relief from certain penalties for the 2017
reporting year. The deadline to provide Forms 1094-C and 1095-C to the IRS was
not extended.
Q1: What was Extended?
2017 Forms 1095-C statements must be furnished to individuals by March 2,
2018 (rather than January 31, 2018).
This extension of time also applies to carriers providing Forms 1095-B to
individuals in insured plans.
Q2: Were the deadlines for reporting to the IRS extended?
No.
The 2017 Form 1094-C and all supporting Forms 1095-C (collectively, “the
return”) is due to the IRS by April 2, 2018 if filing electronically (or February 28,
2018 if filing by paper). These deadlines were not extended as part of the relief
announced in Notice 2018-06. Per the Notice, the government determined there
was no similar need for additional time for employers to file these Forms with the
IRS.
As a reminder, employers that file at least 250 Forms 1095-C must file
electronically. The IRS encourages all filers to submit returns electronically.
Published: December 28, 2017
2017 Compliance Digest: Fourth Quarter | 37
Q3: Is there penalty relief?
Yes
Notice 2018-06 extends transition relief from penalties
to reporting entities that have made good-faith efforts to
comply with the information reporting requirements for the
2017 reporting year, both for furnishing the Form 1095-C
to individuals and for filing with the IRS. Specifically, this
relief applies to missing or inaccurate taxpayer identification
numbers and dates of birth, as well as other information
required on the return or statement.
No relief is available if the reporting entity does not make
a good-faith effort to comply with the regulations or for
a failure to file a return or furnish a statement by the
applicable due dates.
This relief does not absolve an employer from correcting an
incorrect Form if so instructed by the IRS.
Q4: What if the submissions are late?
Employers that do not comply with these due dates are
subject to penalties. However, employers should still furnish
and file the forms and the IRS will take such furnishing and
filing into consideration when determining whether to abate
penalties.
Q5: What if employees do not have Forms
1096-C (or Forms 1095-B from the carrier)
before they file their tax returns?
Some taxpayers may not receive their Form 1095-C (or
1095-B from the carrier) by the time they are ready to file
their personal tax return for 2016. Taxpayers do not need to
wait until they receive their Form 1095-C (or 1095-B) to file
their annual tax return, and may rely on other information
from their employer (or carrier) for purpose of filing
individual taxes. Individuals need not send this information
to the IRS when filing their returns but should keep it with
their tax records.
Q6: Will the IRS offer this relief for 2018
reporting?
According to the Notice, the IRS does not anticipate
extending this transition relief, either with respect to the
due date for furnishing the Form 1095-C to individuals and
good-faith relief from certain penalties, to 2018 reporting.
38 | 2017 Compliance Digest: Fourth Quarter
Congress Passes Tax
Reform Bill
On December 20, 2017, the House and Senate sent President Trump the Tax
Cuts and Jobs Act for signature. The House of Representatives passed their
version of the bill on November 16, 2017 while the Senate passed their version
on December 2, 2017. Because the versions were not identical, a Tax-Bill
Conference Committee was formed from members of the Senate and the House
of Representatives to negotiate the text of the combined bill. After the finalized
text was approved and released by the committee, the House and Senate each
passed the combined bill (which happened on December 20th in the House and
December 19th in the Senate) before it was sent to the White House.
Included in the law are a few employer-provided health and welfare-related
provisions that can be summarized as follows:
• Individual Mandate. The law sets the Individual Mandate penalty to $0
starting in 2019. As a reminder, the Individual Mandate is the part of the
Affordable Care Act that institutes a penalty on individuals that do not
maintain health coverage during the year.
• Medical Expense Deduction. The law expands the medical expense
deduction for 2017 and 2018 for qualified expenses exceeding 7.5% of
adjusted gross income (from 10% under current law). In 2019, the deduction
will increase to expenses in excess of 10% of adjusted gross income.
• Transportation Benefits. The law eliminates the employer’s deduction for
qualified transportation fringe benefits. In addition, except as necessary
for ensuring the safety of an employee, the law would eliminate any
deduction for providing transportation or any payment or reimbursement
for commuting to work. This provision is effective for amounts paid or
incurred after 2017. It appears qualified transportation fringe benefits remain
excludable from the employee’s income. It is the employer’s ability to deduct
the employer’s cost for providing these benefits that is changed.
Published: December 28, 2017
2017 Compliance Digest: Fourth Quarter | 39
40 | 2017 Compliance Digest: Fourth Quarter
• Bicycle Commuter Benefits. Suspends the
exclusion from an employee’s gross income and
wages for qualified bicycle commuting benefits.
Under existing law, employers may provide
employees up to $20 per qualifying bicycle
commuting month on a tax-free basis. Effective
January 1, 2018, any payment or reimbursement
by the employer for bicycle commuting expenses
will be subject to ordinary income tax and
considered wages. The suspension will sunset
after December 31, 2025.
• Employer Tax Credit for FMLA Leave. Finally, for
2018 and 2019 only, the law creates a tax credit for
employers that pay employees while on FMLA leave.
Vacation leave, personal leave, or other medical or
sick leave do not count for this purpose. The credit
is generally 12.5% of the amount of wages paid to
qualifying employees (although it increases by .25%
for every percentage point an employee’s FMLA
wages exceed 50% of their normal wages).
• A qualifying employer is one who:
• Allows all qualifying FT employees at least two
weeks of annual paid FMLA leave (and a prorata
amount for non-FT employees); and
• Has a leave program providing for at least 50%
of normal wages.
• A qualifying employee is one who:
• Has been employed for at least one year; and
• Who had compensation in the previous
year below 60% of the highly compensated
threshold. The highly compensated threshold in
2018 is $120,000, meaning the compensation
to be a qualifying employee for purposes of the
credit is $72,000 for 2018.
Notably, the law does not:
• Repeal or otherwise change the employer mandate
and applicable Form 1094-C and 1095-C reporting.
• Eliminate tax code provisions associated with
dependent care flexible spending accounts and
adoption assistance programs (under the original
House bill, these were repealed).
• Address the high cost plan excise tax (i.e., the
Cadillac Plan Tax) set to take effect on January 1,
2020.
• Reinstate Federal funding for cost-sharing payments
to certain individuals buying individual and family
coverage in the Marketplace.
Please note that this is not a full review of the law, but
focuses solely on provisions that employers should be
aware of in relation to the health and welfare benefits they
provide.
The IRS will began reviewing the revised Code and issuing
regulations and guidance to address the changes in the
future. As guidance relates to health and welfare benefits,
we will keep you apprised of relevant changes.
For the current text, visit:
https://www.congress.gov/congressional-report/115thcongress/house-report/466/1.
www.emersonreid.com
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California | New Jersey | New York | Pennsylvania

Congress Passes Tax Reform Bill

On December 20, 2017, the House and Senate sent President Trump the Tax Cuts and Jobs Act for signature. The House of Representatives passed their version of the bill on November 16, 2017 while the Senate passed their version on December 2, 2017. Because the versions were not identical, a Tax-Bill Conference Committee was formed from members of the Senate and the House of Representatives to negotiate the text of the combined bill.

After the finalized text was approved and released by the committee, the House and Senate each passed the combined bill (which happened on December 20th in the House and December 19th in the Senate) before it was sent to the White House.

On December 20, 2017, the House and Senate sent President Trump the Tax Cuts and Jobs Act for signature. The House
of Representatives passed their version of the bill on November 16, 2017 while the Senate passed their version on
December 2, 2017. Because the versions were not identical, a Tax-Bill Conference Committee was formed from members
of the Senate and the House of Representatives to negotiate the text of the combined bill. After the finalized text was
approved and released by the committee, the House and Senate each passed the combined bill (which happened on
December 20th in the House and December 19th in the Senate) before it was sent to the White House.
Included in the law are a few employer-provided health and welfare-related provisions that can be summarized as follows:
• Individual Mandate. The law sets the Individual Mandate penalty to $0 starting in 2019. As a reminder, the
Individual Mandate is the part of the Affordable Care Act that institutes a penalty on individuals that do not maintain
health coverage during the year.
• Medical Expense Deduction. The law expands the medical expense deduction for 2017 and 2018 for qualified
expenses exceeding 7.5% of adjusted gross income (from 10% under current law). In 2019, the deduction will
increase to expenses in excess of 10% of adjusted gross income.
• Transportation Benefits. The law eliminates the employer’s deduction for qualified transportation fringe benefits.
In addition, except as necessary for ensuring the safety of an employee, the law would eliminate any deduction
for providing transportation or any payment or reimbursement for commuting to work. This provision is effective
for amounts paid or incurred after 2017. It appears qualified transportation fringe benefits remain excludable from
the employee’s income. It is the employer’s ability to deduct the employer’s cost for providing these benefits that is
changed.
Congress Passes Tax Reform Bill
Published: December 28, 2017
CA Insurance License 0F98081
Terry Denesha | (661) 201-0571 | tdenesha@earthlink.net
This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You
should not act or rely on any information contained herein without seeking the advice of an attorney or tax professional. CA Insurance License #0C94240.
Congress Passes Tax Reform Bill Published: December 28, 2017 | Page 2
• Bicycle Commuter Benefits. Suspends the
exclusion from an employee’s gross income and
wages for qualified bicycle commuting benefits.
Under existing law, employers may provide
employees up to $20 per qualifying bicycle
commuting month on a tax-free basis. Effective
January 1, 2018, any payment or reimbursement
by the employer for bicycle commuting expenses
will be subject to ordinary income tax and
considered wages. The suspension will sunset
after December 31, 2025.
• Employer Tax Credit for FMLA Leave. Finally,
for 2018 and 2019 only, the law creates a tax credit
for employers that pay employees while on FMLA
leave. Vacation leave, personal leave, or other
medical or sick leave do not count for this purpose.
The credit is generally 12.5% of the amount of
wages paid to qualifying employees (although
it increases by .25% for every percentage point
an employee’s FMLA wages exceed 50% of their
normal wages).
• A qualifying employer is one who:
• Allows all qualifying FT employees at least
two weeks of annual paid FMLA leave (and a
pro-rata amount for non-FT employees); and
• Has a leave program providing for at least
50% of normal wages.
• A qualifying employee is one who:
• Has been employed for at least one year; and
• Who had compensation in the previous
year below 60% of the highly compensated
threshold. The highly compensated
threshold in 2018 is $120,000, meaning the
compensation to be a qualifying employee for
purposes of the credit is $72,000 for 2018.
Notably, the law does not:
• Repeal or otherwise change the employer mandate
and applicable Form 1094-C and 1095-C reporting.
• Eliminate tax code provisions associated with
dependent care flexible spending accounts and
adoption assistance programs (under the original
House bill, these were repealed).
• Address the high cost plan excise tax (i.e., the
Cadillac Plan Tax) set to take effect on January 1,
2020.
• Reinstate Federal funding for cost-sharing
payments to certain individuals buying individual
and family coverage in the Marketplace.
Please note that this is not a full review of the law, but
focuses solely on provisions that employers should be
aware of in relation to the health and welfare benefits they
provide.
The IRS will began reviewing the revised Code and
issuing regulations and guidance to address the changes
in the future. As guidance relates to health and welfare
benefits, we will keep you apprised of relevant changes.
For the current text, visit:
https://www.congress.gov/congressional-report/115thcongress/house-report/466/1.

Extension of Deadline for 2017 Forms 1095-C

On December 22, 2017, the IRS issued Notice 2018-06, which provides a limited extension of time for employers to provide
2017 Forms 1095-C to individuals. It also extends good-faith transition relief from certain penalties for the 2017 reporting
year. The deadline to provide Forms 1094-C and 1095-C to the IRS was not extended.

On December 22, 2017, the IRS issued Notice 2018-06, which provides a limited extension of time for employers to provide
2017 Forms 1095-C to individuals. It also extends good-faith transition relief from certain penalties for the 2017 reporting
year. The deadline to provide Forms 1094-C and 1095-C to the IRS was not extended.
Q What was Extended?
A 2017 Forms 1095-C statements must be furnished to individuals by March 2, 2018 (rather than January 31,
2018).
This extension of time also applies to carriers providing Forms 1095-B to individuals in insured plans.
Q Were the deadlines for reporting to the IRS extended?
A No.
The 2017 Form 1094-C and all supporting Forms 1095-C (collectively, “the return”) is due to the IRS by April 2,
2018 if filing electronically (or February 28, 2018 if filing by paper). These deadlines were not extended as part
of the relief announced in Notice 2018-06. Per the Notice, the government determined there was no similar need
for additional time for employers to file these Forms with the IRS.
As a reminder, employers that file at least 250 Forms 1095-C must file electronically. The IRS encourages all
filers to submit returns electronically.
Extension of Deadline for 2017 Forms 1095-C
Published: December 28, 2017
CA Insurance License 0F98081
Terry Denesha | (661) 201-0571 | tdenesha@earthlink.net
This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You
should not act or rely on any information contained herein without seeking the advice of an attorney or tax professional. CA Insurance License #0C94240.
Extension of Deadline for 2017 Forms 1095-C Published: December 28, 2017 | Page 2
Q Is there penalty relief?
A Yes
Notice 2018-06 extends transition relief from penalties to reporting entities that have made good-faith efforts
to comply with the information reporting requirements for the 2017 reporting year, both for furnishing the Form
1095-C to individuals and for filing with the IRS. Specifically, this relief applies to missing or inaccurate taxpayer
identification numbers and dates of birth, as well as other information required on the return or statement.
No relief is available if the reporting entity does not make a good-faith effort to comply with the regulations or for
a failure to file a return or furnish a statement by the applicable due dates.
This relief does not absolve an employer from correcting an incorrect Form if so instructed by the IRS.
Q What if the submissions are late?
A Employers that do not comply with these due dates are subject to penalties. However, employers should still
furnish and file the forms and the IRS will take such furnishing and filing into consideration when determining
whether to abate penalties.
Q What if employees do not have Forms 1096-C (or Forms 1095-B from the carrier) before they file their tax
returns?
A Some taxpayers may not receive their Form 1095-C (or 1095-B from the carrier) by the time they are ready to file
their personal tax return for 2016. Taxpayers do not need to wait until they receive their Form 1095-C (or 1095-B)
to file their annual tax return, and may rely on other information from their employer (or carrier) for purpose of
filing individual taxes. Individuals need not send this information to the IRS when filing their returns but should
keep it with their tax records.
Q Will the IRS offer this relief for 2018 reporting?
A According to the Notice, the IRS does not anticipate extending this transition relief, either with respect to the due
date for furnishing the Form 1095-C to individuals and good-faith relief from certain penalties, to 2018 reporting.

The Denesha Difference: Why You Should Choose Us To Be Your Insurance Broker

I am frequently asked “Why should I choose you as my employee benefits broker” or “What makes you different?

My answer is always the same. Not sure if there is a difference. If your current broker is doing a wonderful job, there may not be much of a difference. I might have to ask his golf handicap?

If your agent is doint a great job, keep him/her. If you are comfortable with your health insurance benefits as it relates to cost, stay where you are. If you are confident you are compliant with existing federal, state and local compliance challenges, by all means stay right wher you are. If you like your enrollment technology and voluntary options, wonderful. There are a lot of good brokers and agents. Most do a pretty good job. But if you have a question with anything as it pertains to your benefits, does it hurt to get an independent review and confirm that you are where you should be, and compliant? Some people don’t want to know.
Everyone promises great customer service. That should be the norm. At the Denesha Insurance Agency, we strive to give our clients ‘value added’ services. We have a commitment to customer care that we believe ranks our business a cut above the average insurance agency. It’s a fundamental philosophy that we call the Denesha Difference. Here are just some of the reasons that business owners should choose our agency to be their insurance broker.

The Denesha Difference

We offer a unique business review program, a comprehensive assessment of your business’s insurance and employee benefit plan, with an eye toward compliance with all local, state, and federal laws and regulations. If you are positioned properly, we will tell you to stay right where you are.

We utilize the latest technology and software platforms. Most enrollment software is intended for larger companies of 100 or more employees, but developers are starting to to target the small to medium business niche with insurance solutions designed to meet their unique needs. We try out new products when they come on the market and thus can recommend the right solutions for a company’s specific needs, and can offer assistance with customizing and troubleshooting new technologies.

We offer the option of either electronic enrollment, one-on-one in person enrollment, or a combination of the two. Companies can monitor and maintain HR compliance functions online if they choose. We take a proactive approach to legislative compliance issues and any other critical factors that HR departments need to be aware of.

Open enrollment is usually the most challenging time of the year for our clients, and we’re there to guide you through the process, but Denesha Insurance Agency continues to serve our customers throughout the other 11 months of the year. We’ll advise you on the best and most in-demand employee benefits, and help you to develop a strategic plan to lower the cost of health claims. We fully understand that health benefits are more than just a perk, they’re also an important recruitment and retention tool, and choosing the right plan is important for employee morale. We also ensure that you’re always informed about the latest compliance requirements.
Our regular business hours are from 7:30 AM to 5:30 PM, Monday through Friday, longer than any other agency we’re aware of, and we can also be reached on weekends by phone, text, or email.

As more regulatory requirements are placed on businesses, they need an insurance broker who can not only actively engage with their employees, but also leverage new technologies to help streamline the administrative tasks associated with their benefit plan.
We help both businesses and families analyze the coverage they need for their particular situation, and develop a customized policy that also fits their budget.

When you call the Denesha Insurance Agency, the phone will most likely be answered by one of the owners, either Terry or his wife Debbie. They’ll be ready to assist you with benefits support, employee communications, and personalized insurance services.
We always try to anticipate our customer’s needs, and proactive service is one of the key points that differentiate us from our competition.

Free, no obligation review of current benefits and compliance. We believe that once you’ve worked with our agency, you’ll appreciate the Denesha Difference. Contact us at any time to discuss all of your insurance needs. Even if it’s only to confirm your guy is doing a great job.

What Employers Want From Their Broker

Insurance is changing. And with these changes, Employers are looking to evolve their company’s benefit plans to not only offer the best value available, but also views their employees holistically and sees the need for them to achieve a satisfying work-life harmony. Providing solution based advice for employers can be a valuable benefit should they seek guidance.

Most employers are doing just that. According to insurance giant MetLife’s most recent benefit trends study, at least 81% of employers surveyed say an insurance agent or a broker plays a crucial role when they are developing their benefit plans, and another 75% say a benefits consultant or consulting firm assisted them during their renewal period.

As a guide to benefits advisers, as well as a helpful checklist for employers, MetLife has created a list of 15 areas that employers most often seek advice about from their agents or brokers, along with the percentage that inquiries about those specific benefit areas increased from 2015 to 2016. The areas range from providing global benefit solutions to healthcare reform requirements. The list provides an interesting insight into the changing landscape of employee benefits.

15 Employee Benefit Plan Specifics Companies Most Commonly Seek Advice About

  1. Providing assistance with creating and maintaining an employee benefit handbook: 2015 52% – 2016 62%. Putting together an employee handbook that is comprehensive and informative, yet easy to understand, and keeping it updated as needed, can be a daunting task for any HR department, even those with benefits specialists on staff. An insurance agent or broker can provide valuable guidance about best-practices and effective solutions.
  2. Providing prompt, effective service and answering questions on time: 2015 60% – 2016 68%. Great customer service is one of the keys to a great employee benefit plan. There’s nothing more frustrating than having to spend time on the phone and getting passed around to different departments just to get answers to basic questions about benefits.
  3. Recommending new and innovative benefit solutions: 2015 57% – 2016 65%. This is an important area these days, with so many new solutions coming onto the market, especially for smaller companies with 100 employees or less, towards which a lot of new products are being marketed. New technologies are rapidly changing the way employee benefits are administered.
  4. Recommending cost savings alternatives: 2015 61% – 2016 68%. Everyone is interested in saving money obviously, and an experienced agent or broker can recommend the best values for both employers and employees.
  5. Help with legal, regulatory, and compliance issues: 2015 56% – 2016 64%. With the complexity of the myriad government regulations and new legislation, it doesn’t take much for a company to run afoul of the rules, and incur severe penalties and fines. Professional advice in this area is almost a must.
  6. Providing insights on employee needs and desires for benefits: 2015 53% – 2016 63%. An agent who is experienced in advising on benefit plans for companies in a wide range of industries will be able to help tailor a plan for different types of employees. For instance, companies that hire mostly younger, single people will have different needs than companies that employ mostly older, married individuals.
  7. Reducing the frequency and expense of claims: 2015 56% – 2016 65%. An obvious goal of any employer, there are many ways to achieve it, including employee awareness and educational programs.
  8. Recommending non-medical benefit solutions: 2015 48% – 2016 58%. These are usually preventative programs such as exercise, diet, nutritional, and other health and wellness programs, but also non-traditional medical solutions such chiropractic, massage and aromatherapy, acupuncture, and herbal treatments, among many others.
  9. Advising on employee physical wellbeing strategy: 2015 50% – 2016 60%. This parallels #8 above, but might be considered a more comprehensive, holistic approach encompassing many elements, both physical and mental, leading to total wellbeing.
  10. Advising on employee financial wellbeing strategies: 2015 50% – 2016 60%. Financial stability is actually an important part of a holistic health strategy, as the stress associated with money problems can lead to serious mental and physical illnesses, as well as family issues including divorce and domestic violence.
  11. Creating benefits statements: 2015 52% – 2016 62%. Employees need clear, easy to understand benefits statements on a regular basis throughout the year, at least quarterly, so that they know their exact status. A professional can inform an employer on best practices and technologies for generating these important reports.
  12. Advising on healthcare reform requirements: 2015 57% – 2016 64%. Healthcare reform is one of the biggest political issues of the day, and employers need to keep abreast of changes in legislation that might affect their benefit plans, and what they need to do to stay in compliance with the law.
  13. Providing benefits administration: 2015 54% – 2016 64%. Administering benefit plans can be a huge task for larger companies, an no easy chore for smaller ones either. New technologies and platforms are making the job easier for both, and employers need to be aware of their options.
  14. Recommending product bundling that will meet employee needs: 2015 55% – 2016 64%. There are many products on the market today that can make managing employee benefit plans much easier and more efficient. Finding the right combination for a particular company’s needs requires a professional who is thoroughly familiar with what’s available and the strengths and weaknesses of specific products.
  15. Providing insights regarding benefits trends: 2015 54% – 2016 62%. Like just about everything else, benefits follow trends, and a good, up-to-date plan will take the latest ones into account. An agent or broker will be aware of these and can advise an employer accordingly.

 

Terry and Debbie Denesha have been advising businesses both large and small on their insurance and employee benefits plans for over a decade. Contact us at 661-397-0041 to arrange a consultation and find out how they can help create a plan to meet your company’s unique requirements.

 

 

What Is The Real Reason for Insurance?

Insurance is a misunderstood issue for a lot of people, but it is also one of the most important issues employers and employees will address. When you have a business and offer insurance to the people who work their, you need to be able to show them why insurance matters and what kinds of benefits they are really getting when they sign up. The more you understand about insurance, the more easily you can explain it to your employees in ways they are comfortable with. Then they can go on to make informed choices about whether they want to purchase insurance and what plan or policy they should select.

Transferring Risk Away From the Employee

The biggest benefit to your employees when they have insurance is that risk is transferred away from them. They will no longer have to pay for huge medical bills if something happens to them, like an accident or an illness, because the insurance company will be paying the majority of the bill. While insurance does not cover everything an employee might need to spend, and there will be out-of-pocket costs, employees can save themselves from financial ruin at the hands of medical bills if they have good insurance. That is a big benefit they receive when they work with an employer who offers a good insurance plan.

As an employer, you can show your employees that you care by helping them have good quality insurance at a reasonable price. There are only so many options open to employers, but picking the best plans and offering their information to your employees is a way to show that they matter. You will be taking some of the risk off of the employee and putting it in the hands of the insurance company, and when you can convey the message and value of that to your employees they will better understand why they should consider getting insurance through the company at the rates that are offered to them.

Employees Feel More Valued When They Are Offered Insurance

Employees who are offered insurance feel valued by their company more than employees who do not get any kind of insurance benefits. Because the employee and the employer both have to pay into the cost of the insurance, employees see that the company they work for is investing in them. Companies that offer insurance are saying to their employees that the employees are worth keeping, and that their health and safety matters. By providing this understanding of value to your employees, you show them they are important and they mean something to the company they work for. That can affect loyalty and performance.

Having Good Insurance Plans Can Mean Better Employment Candidates

An important benefit employers get when they offer good health insurance plans is a better pool of job candidates to choose from. People who are looking for employment often want more than just a paycheck, and if they see that they can get good insurance through one company but not through another company that is comparable in pay and job duties, most of them will choose the company where they can receive insurance. Having insurance is about more than just keeping employees from going broke if they are injured or sick. It is also about acquiring and retaining the best employees for the job at hand.

It’s Easier to Pick From a Few, Company-Provided Options

Self-employed people often struggle with how and where to choose an insurance plan. For company employees, though, that struggle is avoided. There are just a few options offered, and employees can pick the ones that work best for them. That eliminates the possibility of having too many choices, and the decision fatigue that can come along with it. In short, it helps employees make better choices, because too many choices generally leads people to pick something that actually is not right for them. By limiting employee choices for insurance, you are doing them a favor and making things much easier for them, overall.

Insurance Can Motivate Employees to Work Harder

Giving bonuses and other incentives, along with the idea that they will be protected by insurance if the company keeps them on after their probationary period of up, can all encourage employees to work harder. They want to do more for a company that treats them right, and that cares about them and their lives. That is good news for any company that offers insurance, because happy, productive employees are so important to the proper running of any company. Without good employees, many companies are left struggling. Sometimes as simple as providing insurance can change motivation levels and improve the bottom line.

Good Insurance Means Employees May Remain On the Job Longer

When employees have good insurance through their employer, another thing they may do is stay on the job longer. When they quit they will lose their insurance, and if the choose to keep it the price often rises drastically. If they change jobs they may not be covered by the other company for a while, or the other company they are considering may not have as good of an insurance plan. In some cases, the other company may not have an insurance plan at all. That can make a significant difference in how long a person chooses to work for a company, and if they stay even if other opportunities are available.

The Bottom Line on Insurance

Because insurance is a transfer of risk from the employee to the insurance company, it helps to protect the employee financially if there is an injury or illness. Additionally, employees feel much more valued and important to the company if they are offered insurance, which can lead them to stay with the company longer and work harder than they otherwise would. Good insurance plans can also bring in other employees who are dedicated and talented, and their lives are made easier by not having to choose from too many insurance plans. When insurance is handled the right way, It is a winning situation for both the employees and their employer.

California Paid Family Leave

In 2002, California became the first state to adopt a paid family leave law, which provides
employees with up to 6 weeks of paid family leave (PFL) through the State Disability
Insurance (SDI) program. The following chart is a general overview of the law and its
requirements.
Who Pays for PFL? PFL is funded entirely by employee contributions to the SDI program, which
are made through payroll deductions.
Which Employers Must
Deduct SDI Contributions?
The PFL program applies to all California employers, regardless of size.
Which Employees Are
Eligible for PFL?
To be eligible for PFL, an employee generally must:
 Be unable to perform his or her regular or customary work for at least 8
days due to the need to provide care to a seriously ill family member or to
bond with a new child;
 Have paid into SDI in the past 5-18 months;
 Have not taken more than 6 weeks of PFL in the past 12 months; and
 Have a qualifying life event (depending on the life event, other eligibility
requirements may apply).
Which Life Events Qualify for
PFL?
An employee may file a claim for PFL through the SDI program for the
following reasons:
 To care for a seriously ill child, spouse, parent, parent-in-law, grandparent,
grandchild, sibling, or registered domestic partner; or
 To bond with a new child (including newly fostered and adopted children).
How Long Can an
Employee Be Out on PFL?
Up to 6 weeks within any 12-month period
Must an Employer Maintain
an Employee’s Health
Benefits While He or She is
Out on PFL?
Maintenance of health benefits is not required under PFL. However, it may
be required under the California Family Rights Act (CFRA) or the federal
Family and Medical Leave Act (FMLA).
Is an Employee Entitled to
His or Her Position Upon
Return from Leave?
Maintenance of job position is not required under PFL. However, it may be
required under the CFRA or the FMLA.
Are Employers Required to
Post or Provide Notices to
Employees Regarding PFL?
Yes. Employers are responsible for providing information on PFL to their
employees by:
o Posting DE 1857A; and
o Providing DE 2515 and DE 2511 to new hires and employees who notify
their employer that they need to take time off from work due to a nonwork-related
illness, injury, pregnancy, or childbirth.
Additional Information
For more information, employers may review the California Employment Development
Department’s website on PFL.
3
California Paid Family Leave
Provided by:
Denesha Insurance Agency
9711 Holland St
Bakersfield, CA 93309
Phone: 6613970041
www.denesha.net/HOME
Note: The information and materials herein are provided for general information purposes only and have been taken from sources believed to be reliable,
but there is no guarantee as to its accuracy. © 2017 HR 360, Inc. | Last Updated: July 24, 2017

DOL Sues Health Plan Alleging SPD and Wellness Program Failures

On August 16, 2017, the Department of Labor (“DOL”) filed a lawsuit against Macy’s Inc. Health and Welfare plan
(and its third party administrators) under ERISA Title I.
Specifically, the complaint alleges:
• The health plan and its fiduciaries failed to follow the written terms of the health plan’s Summary Plan Description
(SPD) when reimbursing out-of-network claims; and
• The wellness program that includes a tobacco surcharge violated the HIPAA wellness program rules.
The complaint alleges breach of fiduciary duty and asks, in part, for readjudication of all out-of-network claims
administered outside plan terms and for restitution of all the tobacco surcharges imposed.
Failure to Amend SPDs
According to the DOL’s complaint, Macy’s changed the reimbursement threshold for out-of-pocket claims from
“the lesser of the provider’s normal charge for a similar service or supply or between 75%-80% of usual and customary
charges” to the Medicare Allowable Rate when it is less than the provider’s normal charge for a similar service or supply.
Allegedly, the SPD was not amended to include language describing that the reimbursement for out-of-network claims
would be the Medicare Allowable Rate when less than provider’s normal charge. Additionally, the health plan participants
were not provided a copy of any summary of material modification reflecting the change in reimbursement.
DOL Sues Health Plan Alleging SPD and
Wellness Program Failures
Published: August 23, 2017
CA Insurance License 0F98081
Terry Denesha | Denesha Insurance Agency | (661) 201-0571 | tdenesha@earthlink.net
This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You
should not act or rely on any information contained herein without seeking the advice of an attorney or tax professional. ©2017 Emerson Reid, LLC. All Rights Reserved.
DOL Sues Health Plan Alleging SPD and Wellness Program Failures Published: August 23, 2017 | Page 2
Wellness Program Failures
The DOL alleges the tobacco cessation wellness program
sponsored by Macy’s did not meet the requirements of
the wellness regulations to provide a nondiscriminatory
wellness program for the years 2011 to present day.
Briefly, the employer imposed a surcharge on an
employee’s premium for individuals who were smokers.
While such surcharges are permissible, there are specific
guidelines that must be followed to comply with HIPAA
wellness regulations.
Specifically, the DOL alleges the wellness rules were
violated because the program:
• Required covered members participating in a
tobacco cessation program to be tobacco free for
six consecutive months in order to avoid a premium
surcharge;
• Did not allow individuals who completed the
tobacco cessation program to avoid the entire
surcharge (i.e., retroactively correct the application
of a surcharge); and
• From 2011-2013, the materials describing the
wellness program failed to include a notice of
a reasonable alternative standard to avoid the
surcharge.
Why is this Important?
The recent filing by the DOL of this complaint signals
the agency has not backed away from pursuing ERISA
violations against employer-sponsored health plans.
It also highlights the importance for plans to keep
documents up-to-date to ensure administration is
consistent with the written terms of the plan. Finally,
it highlights the importance of following the rules when
it comes to wellness programs, specifically offering a
reasonable alternative to achieve the reward without
conditioning it on satisfying the original standard
(e.g., non smoker status) and making the full reward
available upon completion of the alternative.
It will be interesting to see Macy’s response and to follow
developments in this litigation and any actionable items
for plan sponsors. We will continue to keep you apprised.

Employer Penalty and 1094-C/1095-C Reporting

Applicable large employers (“ALEs”) may be resting easy, having had no notification from the IRS of 2015 or 2016
assessments under the Employer Shared Responsibility Provisions (the Employer Penalty) and having reasonably
expected that the Republican-led administration would limit or choose not to enforce this mandate.
However, the recent failure in the Senate to pass legislation to repeal and replace the Affordable Care Act (“ACA”) has left
many employers wondering whether:
• Penalties associated with the Employer Penalty will be enforced; and
• Forms 1094-C and 1095-C will be required going forward.
Recently, the IRS published draft versions of the 2017 Forms 1094-C (https://www.irs.gov/pub/irs-dft/f1094c–dft.pdf) and
1095-C (https://www.irs.gov/pub/irs-dft/f1095c–dft.pdf).
These versions are substantially similar to past Forms. Notably though, the Form 1094-C has reserved areas once used
to reflect available transition relief (Line 22 Certifications of Eligibility, Boxes “B” and “C”). Final versions of the Forms are
expected in the fall. Draft instructions for the 2017 Forms have not yet been released.
To date there has been no guidance issued by the IRS that eliminates penalties for Employer Penalty violations or fines
associated with failures to accurately complete, provide and/or file Forms 1094-C and 1095-C. While some employers
may think a Trump-led IRS will ignore these requirements, absent non-enforcement guidance from the agency, employers
should continue to comply.
Nineteenth Set of FAQs on the ACA Issued
Published: May 12, 2014 Update
Employer Penalty and 1094-C/1095-C Reporting
Published: August 22, 2017

CA Insurance License 0F98081

Terry Denesha | Denesha Insurance Agency | (661) 201-0571 | tdenesha@earthlink.net

This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You
should not act or rely on any information contained herein without seeking the advice of an attorney or tax professional. ©2017 Emerson Reid, LLC. All Rights Reserved.
Update: Employer Penalty and 1094-C/1095-C Reporting Published: August 22, 2017 | Page 2

Why Comply? The Alternative may be
Expensive.
The potential penalties are not limited to the “A” and “B”
Employer Penalty assessments (which are substantial).
There are also significant penalties associated with
failures to accurately complete, provide and/or file Forms
1094-C and 1095-C:
• The penalty for failure to file a correct information
return is $260 for each return for which the failure
occurs, with the total penalty for a calendar year not
to exceed $3,193,000.
• The penalty for failure to provide a correct payee
statement is $260 for each statement for which the
failure occurs, with the total penalty for a calendar
year not to exceed $3,193,000.
• Special rules apply that increase the per-statement
and total penalties if there is intentional disregard
of the requirement to file the returns and furnish the
required statements.
An employer intentionally ignoring the 1094-C and 1095-
C requirement could be assessed penalties of more than
$520 per form, up to $6,386,000 per year.

Next Steps
At this point, ALEs should:
• Prepare for CY 2017 Form 1094-C and 1095-C
reporting. The Form 1095-C for CY 2017 will be

due January 31, 2018 to ACA FTEs and, for self-
insured group health plans, any covered non-ACA

FTEs. Filings to the IRS are expected electronically
by April 2, 2018 (and, for those eligible, on paper
by February 28, 2018). We will update you if any
extension of time is announced.
• Prepare to address notifications of a potential
penalty assessment from the IRS. Likely, any
notices associated with the 2015 calendar year
would be issued first, with 2016 notices to follow.
• Continue to identify ACA FTEs using the
appropriate measurement method (monthly or
look-back) and manage offers and affordability of
coverage. Understand any potential penalty liability
that exists in your organization.
• Await updates from the IRS, including issuance of
the final CY 2017 Forms and Instructions, likely in
September or October.

Five Most Common Open Enrollment Mistakes

A company’s open enrollment period can be a hectic time for management, HR staff, and employees alike. While a successful open enrollment period can increase employee health and satisfaction, an unsuccessful open enrollment period can result in compliance risk and reputational damage.

Learn the five most common open enrollment mistakes and how to avoid them below.

Mistake #1: Not Informing Employees of the Value of the Health Plan

Retention is greatly increased when employees understand the value of their employer-sponsored health plan. To aid this understanding, employers should consider providing their employees with:

  • A well-organized benefits summary which addresses the key features of the health plan; and
  • A total compensation statement which emphasizes that health plan benefits are a form of compensation received by the employee.

Mistake #2: Not Informing Employees of Health Plan Changes

If the employee has not experienced a job or family change, he or she may simply re-enroll in the health plan without giving it a second thought. However, health plan premiums, deductibles, and coverage networks may change each plan year, and the employer may be offering new benefits with unique requirements. As a result, it is important for the employer to inform employees of plan changes. Employers should consider using tools such as benefits summary documents, emails, in-person meetings, and social media posts to help ensure that employees fully understand their health benefits.

Mistake # 3: Not Responding to Employee Questions or Concerns

Some employees may have specific questions about the health plan which go unaddressed, while others may want a benefit that is not part of the current health plan. Employers should be mindful of these concerns and seek to better understand what employees want from their health plan. By using online surveys and other methods to obtain employee feedback during open enrollment, employers can satisfy concerned employees and learn how to enhance their health plan.

Mistake #4: Not Offering Coverage to Dependents

Under the Affordable Care Act (ACA), employers with 50 or more full-time employees (including full-time equivalent employees) may be liable for a penalty of over $3,000 per full-time employee if they do not offer coverage to the dependents of their full-time employees. In addition, the ACA requires all plans that offer dependent coverage to offer coverage to plan enrollees’ adult children until they reach age 26, even if the child is eligible for coverage through his or her own employer. As a result, it is very important for employers to offer dependent coverage and inform employeesof its availability.

Mistake #5: Not Fully Explaining any Tax-Favored Accounts Offered

To take the sting out of high plan deductibles and other out-of-pocket costs borne by employees, many employers have begun offering health savings accounts (HSAs), health flexible spending arrangements (health FSAs), and health reimbursement arrangements (HRAs) in conjunction with their health plans. However, the rules governing these tax-favored accounts can be complicated, and violations of their specific participation, contribution, and distribution requirements can lead to tax penalties. Employers should take the time to fully explain any tax-favored account they offer, and remember to emphasize that the employer’s establishment of and contribution to these accounts is yet another part of the employee’s total compensation.