Is Obamacare Lite Really Less Calories? What Employers Need to Know

by Foley & Lardner LLP
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As predicted, Congress is taking action to repeal and/or alter major sections of the Patient Protection and Affordable Care Act (ACA). To get the process started, various committees in the United States House of Representatives (House) are in the midst of revising draft reconciliation bills – collectively known as the American Health Care Act (AHCA).

These mark-ups are just the starting point in a process where the House and Senate will each weigh in. We may also see additional proposals from the Trump administration before any new legislation is in final form. While the legislation is nowhere near the finish line, the following provides a brief overview of how the AHCA may potentially impact employers in the near future:

  • The ACA’s employer mandate requires employers with 50 or more full-time employees to provide affordable health insurance. The AHCA does away with this requirement, repealing the employer mandate for tax years starting with 2016. Not only would coverage duties cease under the AHCA, but employers would also be entitled to retroactive relief for penalties with respect to 2016. While the Internal Revenue Service (IRS) has provided initial invoices for such penalties, it is unclear, however, if such penalties have in fact been paid by businesses.
  • Employees would still be able to maintain health insurance coverage for their children until the age of 26.
  • The ACA’s limit on the amount an employee may contribute to a health flexible spending account (health FSA) per year ($2,600 in 2017) would be repealed, effective January 1, 2018. In addition, employees would be able to once again use health FSA monies to purchase over-the-counter medications without a prescription.
  • While many of the ACA’s taxes will be repealed, the “Cadillac Tax” – a 40% excise tax on high-cost health insurance coverage provided by employers—will remain, but not yet go into effect until 2025.
  • Employees will be able to contribute higher amounts to Health Savings Accounts (HSAs), regardless of whether they have individual or employer-provided health coverage (i.e., $6,550 for individual coverage and $13,000 for family coverage).
  • Employers will once again be permitted to deduct amounts paid for retiree prescription drug coverage as a business expense.
  • Employers will still likely be expected to comply with a series of reporting requirements to the IRS which will include information about the number of employees who receive coverage, the type of coverage, premium costs, and the number of employees who declined coverage.

What does this mean right now? For the time being, the ACA remains in effect. Until a final version of the AHCA (or similar legislation) makes its way to President Trump’s desk and is signed into law, employers remain bound by all relevant provisions of the ACA.

However, assuming the AHCA makes its way through the House and Senate, and ultimately to the White House, employers should undertake pro-active steps to ensure that their human resources executives are well versed in the nuances of this climate-changing legislation and its inevitable impact upon their workforce.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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