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Update on Health Care Reform


Update on Health Care Reform Sherry P. Porter 500 West Jefferson Street Suite 2800 Louisville, KY 40202 (502) 562-7560 – PowerPoint PPT presentation

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Title: Update on Health Care Reform

Update on Health Care Reform
  • Sherry P. Porter
  • 500 West Jefferson Street
  • Suite 2800
  • Louisville, KY 40202
  • (502) 562-7560

  • The information in the following slides
    represents only an overview of the law, and is
    not intended to cover all the fine points with
    respect to any particular portion of the law or
    its application to any particular person.
    Accordingly, it is not intended to be legal
    advice, which should always be obtained in direct
    consultation with an attorney.

Backdrop of Health Care Reform
  • The U.S. has 47.9 million people who are
    completely uninsured and another 25 million
    people who are inadequately insured
  • More than three-quarters of the uninsured are in
    a working family
  • Medicare projected to be bankrupt by 2016
  • Healthcare spending as percentage of gross
    domestic product in U.S. is almost twice that of
    most other countries. If continues at same rate,
    the Congressional Budget Office (CBO) projects it
    will be close to 100 of GDP by 2082

Source Kaiser Family Foundation, Health
Coverage the Uninsured, www.kff.org (last
visited 3-30-13)
History of Health Care Reform
  • On March 23, 2010, the Patient Protection and
    Affordable Care Act was signed by President
    Barack Obama
  • Amended by the Health Care and Education
    Reconciliation Act one week later.
  • Jointly called the Affordable Care Act.

Public Law 111-148, available from Government
Printing Office (GPO) at http//www.gpo.gov/fdsys
Public Law 111-152, available from GPO at
Goals of ACA
  • Three overriding goals
  • Expanding the population of Americans covered by
    health insurance and/or public health care
  • improving the health care delivery system, and
  • controlling the rising cost of health care.
  • The CBO estimates the new health reform law will
    provide coverage to an additional 32 million
    people when fully implemented in 2019.

Making Law is Like . . .
  • 2,500 Pages
  • More than 500,000 words
  • Phasing in over 10 years
  • Thousands of regulatory decisions left for the
  • We have to pass the bill so you can find out
    whats in it -- Nancy Pelosi

Affordable Care Acts Expanded Coverage
Affordable Care Acts Expanded Coverage
Expanded Healthcare Coverage
Two Decisions Face State Government
  • Expand Medicaid?
  • Create health benefit exchange?

Medicaid Expansion
  • ACA expands Medicaid to all non-Medicare eligible
    individuals under age 65 (children, pregnant
    women, parents, and adults without dependent
    children) with incomes up to 133 FPL (actually
  • All newly eligible adults will be guaranteed a
    benchmark benefit package that meets the
    essential health benefits available through the
  • Supreme Court ruling gave states option whether
    to expand Medicaid, but States mixed on whether
    will expand

Medicaid Expansion
  • Map

Health Insurance Exchange
  • State can create exchange or default to federal
  • Each state can create an American Health Benefit
    Exchange and a Small Business Health Options
    Program (SHOP) Exchange for individuals and small
  • States must establish an office of health
    insurance consumer assistance or an ombudsman
    program to serve as an advocate for people with
    private coverage in the individual and small
    group markets
  • Federal grants available

Nationwide Health Insurance Exchanges
  • Exchanges

Individual Requirements under ACA
  • U.S. citizens and legal residents must have
    qualifying health coverage. Called the
    Individual Mandate
  • Individual Mandate upheld by the Supreme Court
    and, after most recent election, is here to stay
  • Must maintain minimum essential coverage
  • There are some exceptions
  • low income
  • required contribution for self-only coverage for
    a calendar year exceeds 8 of household income
  • hardship
  • religious exemption
  • . . . .

Penalties Under Individual Mandate
  • Those without coverage pay a tax penalty of the
    greater of
  • Flat Dollar Amount (95 in 2014, 325 in 2015,
    and 695 in 2016 and adjusted for inflation after
    that, up to a maximum of three times that amount
    per family)
  • Percentage of Household Income (1 of household
    income in 2014, 2 in 2015, and 2.5 thereafter)
  • The penalty for noncompliance cannot exceed what
    it would have cost to obtain insurance.

Individual Subsidies
  • Limited availability of premium credits and
    cost-sharing subsidies through the Exchanges to
    U.S. citizens and legal immigrants who meet
    income limits
  • Premium and cost-sharing credits are available to
    those with income between 133-400 of the federal
    poverty level
  • Premium credits may be used to purchase insurance
    through the Exchanges.
  • Set on a sliding scale based on income.

Easier for Individuals to Obtain and Keep
  • Dependents covered until their 26th birthday
  • No discrimination based on health status
  • Guaranteed issue
  • No pre-existing condition exclusions
  • Limited rescissions
  • Eligibility waiting periods longer than 90 days
  • Reviews on premiums charged

Additional Services Covered by Plans
  • Full coverage for certain preventative care
  • E.g., high blood pressure, diabetes and
    cholesterol screenings, routine immunizations,
    and evidence-based preventive care and screenings
    for women
  • Abolishes annual and lifetime coverage caps for
    medical care

Grandfathered Plans
  • Plans that existed on March 23, 2010 are exempt
    from some of the laws consumer protections.
  • Can lose grandfathered status if
  • Eliminates all or substantially all benefits to
    diagnose or treat a particular condition
  • Increases participant's percentage cost-sharing
  • Increases co-payments by more than certain
  • In order to maintain such status, plans must
    continually disclose to participants that it
    believes it is a grandfathered plan and keep
    documentation of this

Medical Loss Ratios (MLRs)
  • Insurers must spend a certain percentage of
    premium dollars on eligible expenses instead of
    overhead or profits to shareholders
  • Otherwise, it must pay a rebate
  • An incentive to health insurers to either keep
    premiums low or increase coverage

Delayed until 2015 Employer Pay or Play Mandates
  • General Rule.
  • The ACA imposes penalties on applicable large
    employers who
  • fail to offer minimum essential coverage to 95
    of their full time employees or
  • provide coverage that is either
  • insufficient (i.e., the employer pays less than
    60 of the cost), or
  • unaffordable
  • resulting in employees choosing their own
    coverage and receiving government subsidies.

What Is an Applicable Large Employer?
  • 50 or more full time equivalent employees
  • Full time is defined as 30 or more hours per week
  • To calculate total FTEs, add the following
  • All employees who works at least 30 hours per
    week (full time) PLUS
  • Total number of hours worked in a month by part
    time employees (lt30 hours per week) divided by
  • If 50 or more FTEs, then must offer coverage, but
    only to full time employees
  • If less than 50 FTEs, then no obligation to offer
  • Tip Retain documentation of calculations

Penalties for No Coverage
  • An applicable large employer who offers no health
    coverage will be subject to a penalty equal to
    2,000 per year per employee after the first 30

Penalties for Insufficient or Unaffordable
  • Insufficient Coverage means employer does not pay
    at least 60 of the total allowed cost under the
  • Unaffordable Coverage means the employees
    required contribution is more than 9.5 of the
    employees household income and the employees
    household income is under 400 of FPL

Penalties for Insufficient or Unaffordable
  • The penalty for inadequate coverage is 3,000 per
    year for every employee who opts out of the
    employers plan and gets government subsidized
    coverage under the exchange plan subject to a

The cap The total penalty for the employer
cannot exceed the overall penalty that would
apply if the employer offered no coverage at all
Variable Employees
  • Do not have to offer coverage to
  • Seasonal employees
  • Temps
  • Leased employees
  • Most issues arise with variable hour employees
  • Measurement (Look Back) Period
  • between 3 and 12 months
  • defined by employer
  • Stability Period
  • at least 6 months
  • cannot be shorter than Measurement Period
  • Administrative Period
  • optional 90-day time out after the Measurement

Important Points Regarding Penalties
  • There is no penalty for these failures if you are
    not a large employer
  • The penalties are not tax deductible
  • Employer will be notified if any of its employees
    are determined to be eligible for premium
    assistance or cost sharing reduction

(No Transcript)
ATT Analysis
  • 2009 Medical Costs
  • for 283,000 Employees
  • 2.4 billion
  • Penalties if workers
  • uninsured
  • 600 million

90-Day Waiting Periods
  • ACA says no more than 90 days before an
    individual is eligible to be covered for benefit
    under group health insurance (employee can choose
    to wait more than 90 days)

Model Notices
  • Employers must provide notice of health insurance
    marketplace by October 1, 2013 (within 14 days
    for new hires)
  • Sample notices from Department of Labor
  • Cannot just print and send to employees need
    specific employer information on notice
  • COBRA notice also revised
  • Available on DOL website

  • Health plan cannot favor highly-compensated
  • Penalties
  • Inadvertent Violations The employer is subject
    to an excise tax of 100 per non-highly paid
    employee per day. Calculated for each day the
    plan fails testing. Cap of the lesser of
    500,000 or 10 of the premium for the prior plan
  • Willful Violations Excise taxes plus additional
    civil penalties
  • Enforcement for self-insured plans by DOL
  • However, regulations defining such
    discrimination have not been released thus,
    this particular anti-discrimination provision
    wont likely be enforced in 2014

Employer Subsidies
  • Small Business Tax Credit (25 or fewer employees)
  • Certain small employers were eligible for tax
    credit if they contribute at least 50 toward
    their employees health insurance.
  • Available for small businesses that are both
    for-profit (35 credit) and non-profit (25
  • NOTE Due to the sequester, effective 3/1/13,
    small businesses, tax exempt under IRC 45R,
    will have an 8.7 reduction in their refundable
    small business tax credit through at least
  • Smaller employers can participate in State
    Exchanges. Once eligible, employer remains
    eligible regardless of number of employees.
    (After 2017, states may permit larger employers
    in exchanges.)

Retaliation Protections for Employees
  • Employees may not be subjected to retaliation
  • Reporting violations of the ACAs consumer
    protections, or cooperating in investigation or
    prosecution of such violations
  • Note it could be an employer or insurer that
    violates this protection
  • Receiving premium tax credits that expose their
    employer to tax assessments for failing to
    provide affordable or sufficient health coverage
  • A violation of these non-discrimination,
    anti-retaliation provisions are treated as
    violative of the FLSA
  • Employee complaints must be brought within 180
    days before OSHA
  • Query will employers ACA-evasive conduct be

How Are We Going To Pay For This?
  • Increase Medicare payroll tax for incomes that
    exceed 200,000/250,000
  • 40 excise tax on Cadillac plans (exceeds
    10,200 / 27,500)
  • Reduce Medicare Advantage overpayments
  • Reduce Medicaid drug cost
  • Increase Medicare premiums for the wealthy

How Are We Going To Pay For This? Cont.
  • In 2014, annual fee on plans based on an
    insurers net premiums (self-insured plans
  • Industry fees
  • Adjust payments to Medicare providers
  • Reduce special payments to hospitals
  • Employee and individual penalties
  • Tanning bed taxes

Legal Challenges to ACA
  • NFIB v. Sebelius, Secy of HHS (decided 6/28/12)
  • NIFBs Bottom Line ACA is mostly constitutional
  • Individual Mandate Upheld (5 to 4)
  • Taxing power sustains it (5 to 4)
  • Interstate commerce does not (4 of 9)
  • Only unconstitutional part - coercive Medicaid
    expansion (7 to 2)
  • Remedy (fractured opinions)
  • Strikes ACAs enforcement that threatens loss of
    Medicaid funding if States dont expand (5 to 4)
  • Sustains ACAs offer of enhanced Medicaid
    funding if States do expand (5 to 4)

Legal Challenges to ACA Tax Subsidy Challenges
in States Refusing to Set up an Exchange
  • Loophole in ACA
  • Challenge to Federal Tax Subsidies for
    individuals purchasing coverage in federally run
  • Could go to the SCOTUS in 2014 not likely until
  • Result not likely to cause repeal of the law

Legal Challenges to ACA Contraception Mandate
  • Numerous challenges
  • Churches/denominational hierarchies
  • Religious-affiliated, non-profit/tax-exempt
  • For-profit businesses with owners having strong
    religious objections
  • Religious Objections to abortifacients
    anti-contraception meds

Legal Challenges to ACA Contraception Mandate
  • New Regulations accommodate churches
    religious-affiliated employers
  • Catholic Bishops still dissatisfied
  • New Regulations do not accommodate for-profit
  • Will likely go to SCOTUS, but maybe not before
  • If successful, result not likely to strike the
    law, only carve out religious objector exemption

Other Interesting Legal Challenges
  • Pacific Legal Foundations Challenge to the ACA
    as a violation of the Constitutions
    Origination Clause
  • The guts of the ACA were constructed in the
    Senate, and substituted for a House bill (HR
    3590) related to other topics
  • Origination clause requires tax bills to
    start in the House
  • Kentucky Health Benefit Exchange New Tea
    Party challenge to Gov. Beshears establishing
    by executive order an exchange for Ky.

Health Care Reform is Here to Stay
  • President Obama Re-Elected
  • ACA (mostly) upheld in the Supreme Court
  • More than 30 attempts to repeal all or part of
    the law in Congress have failed

Additional Resources
  • Business Lexington articles on the Affordable
    Care Act by Doug McSwain and Business First
    article by Sherry Porter
  • http//wyattfirm.com/news-publications-civic-detai
  • http//wyattfirm.com/news-publications-civic-detai
  • http//wyattfirm.com/news-publications-civic-detai
  • http//wyattfirm.com/uploads/178/doc/ACA_What20Em
  • Margaret Levis book on the Affordable Care Act,
    The Impact of Health Care Reform on Kentucky
    Employers, is available at the Kychamber.com/books

  • Sherry P. Porter
  • Wyatt, Tarrant Combs, LLP
  • 500 West Jefferson Street, Suite 2800
  • Louisville, KY 40202
  • (502) 562-7560
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