PBM Trade Association Sues Over Transparency Rules

As the federal government continues rolling out new laws and regulations aimed at increasing price transparency in the health care industry, one group is fighting back: pharmacy benefit managers.

The Pharmaceutical Care Management Association, a trade association for PBMs, has sued the Department of Health and Human Services, Internal Revenue Service and Department of Labor, all of which were instrumental in rolling out transparency regulations in 2020, which took effect Jan. 1, 2021.

The rules specifically require health plans (including PBMs) and health insurers to disclose on their websites their in-network negotiated rates, billed charges and allowed amounts paid for out-of-network providers, and the negotiated rate and historical net price for prescription drugs.

PBMs were included in the transparency rules because numerous reports have found that some of them rely on opaque contracts with pharmacies and drug companies, and that they allegedly fail to pass on rebates and lower drug prices they negotiate to their enrollees.

The lawsuit comes as PBMs are feeling the heat over their practices. At least seven states and the District of Columbia are investigating them, mainly focusing on whether they fully disclose the details of their business and whether they receive overpayments under state contracts.

Also, attorneys general in four states have sued PBMs, mostly alleging that they misled state-run Medicare programs about pharmacy-related costs.

What the PBMs are saying

The PBMs allege in their lawsuit that the rule will not benefit consumers because their knowing what the contracted drug prices are won’t have an effect on them as there are no actions they can take knowing this information.

The trade association said: “The rule offers consumers no actionable information because net prescription drug prices are not charged to consumers and never appear on a bill.” Instead, the information will likely confuse consumers, it alleges.

The trade body in its court filing said PBMs maintain that their business model hinges on their ability to negotiate confidentially and keep the details of their manufacturer contracts as trade secrets that are not available to other drug manufacturers or otherwise disclosed to the public.

“Confidentiality, in turn, allows PBMs to bargain from a position of strength to reduce drug prices,” it wrote. “Government-enforced information sharing will raise costs by reducing PBMs’ ability to negotiate deeper discounts on drug prices.

“The regulation threatens to drive up the total drug price ultimately borne by health plans, taxpayers and consumers by advantaging drug manufacturers in negotiations over price concessions,” it added.

An Employer Guide to Open Enrollment for the 2022 Policy Year

With the COVID-19 pandemic continuing to throw a wrench into the economy and the workplace, employers are gearing up for another unusual open enrollment for their group health plans for the 2022 policy year.

As a result of the pandemic, your employees’ priorities may have changed and some of them may be looking at enhanced benefits, or to change their plans’ deductibles or out-of-pocket maximums.

The coronavirus is obviously not in the rear-view mirror, so employers need to consider workers’ new priorities when choosing health insurance plans and other employee benefit offerings.

Employees’ new priorities

Here’s what’s become a priority for many workers today:

  • Mental health support
  • Access to telehealth
  • Higher interest in health savings accounts (HSAs).

Employers should consider their staff’s new priorities when designing health and benefit programs. If you decide to make changes to your plans or if your health plans have changed, you’ll need to effectively communicate those changes to your workforce.

More health plans are rolling out more and improved access to mental health support, the demand for which has surged during the pandemic as many people struggled with the sudden changes and isolation spawned by stay-at-home orders.

Additionally, because many people were afraid or because of doctor’s office restrictions, many tried telehealth video-conferencing services for the first time in 2020 or in 2021. Insurers see telehealth as a viable option for reducing the cost of care, and they have invested heavily in the infrastructure to enable health plan enrollees to meet virtually with their doctors.

More health plans are also covering mental health video-conference sessions as well.

Many plans have expanded these services, but you’ll need to check to see if the ones you are offering include these enhancements.

Additionally, the pandemic has resulted in more employees looking for ways to set aside funds during the year to pay for health care and medications. This can be done through HSAs and flexible spending accounts (FSAs). which are funded by the employee using pre-tax dollars. The funds in those accounts can be used to reimburse for a wide variety of qualified medical expenses.

HSAs, however, can only be offered to employees who are enrolled in a high-deductible health plan (HDHP). HSAs can be kept for life and can be transferred from one employer to the next if a worker switches jobs. FSAs are easier to set up, but they are not kept for life and cannot be transferred to another employer when an individual leaves your employ.

There are some changes to these plans that you should know about.

The Coronavirus Aid, Response and Economic Security (CARES) Act, signed into law in March 2020, allowed HSA-qualified HDHPs to cover telehealth services before plan enrollees reached their deductible. This provision expires Dec. 31, 2021.

However, another change brought by the CARES Act is permanent: Employees with HSAs, health reimbursement arrangements or health FSAs are now allowed to use those accounts to reimburse for over-the-counter medications without a prescription, and for certain menstrual care products, such as tampons and pads.

Communications and planning

During your open enrollment meetings and in your communications material, you’ll want to highlight any new services that the health plans you are offering your staff will cover.

Since COVID-19 is still present and is raging in some communities, you may want to consider:

Holding a ‘virtual benefits fair’ — In these virtual fairs, employees and families can go online and check out the offerings of all the plans available to them, so they can learn more about their offerings and provider networks. These events can be done on the employees’ and families’ own time.

Conducting virtual open enrollment meetings — Consider holding teleconference open enrollment meetings to go over the employees’ health plan choices, and the deductibles, copays, premium amounts and what the maximum out-of-pocket is for each choice.

Sending out more frequent and targeted communications — Targeted communications can be sent to various cohorts of your employees, such as information on plans that would be of most interest to people in their 20s and 30s. What you send them in terms of recommended options would be different than what you send older employees, who have other priorities.

Using technology for enrollment — Some health plans offer apps through which employees can choose and sign up for the plan of their choice. Talk to us about what’s available to you.

Schedule it

The Society for Human Resources Management recommends that you do the following in the two months prior to open enrollment (September through October). This is the time to get the word out about the upcoming open enrollment. Consider:

  • Distributing a pre-enrollment flier (printed and online) in September.
  • Holding a virtual benefits fair in mid-to-late September.
  • Distributing the enrollment packet at the end of October (printed and online).

COBRA Subsidies Ending and Employers Must Send Out Notices

The 100% COBRA health insurance subsidies for workers who lost their jobs during the COVID-19 pandemic are about to expire on Sept. 30, and that means employers who have former staff receiving those subsidies must notify them of their expiration.

If you have former employees who are still on COBRA benefits and receiving the subsidy that was required by the American Rescue Plan Act, you will need to send them a timely notice that the 100% subsidy will end at the end of September and that they will have to start paying premiums if they wish to continue coverage after it has ended.

The expiration notice must be sent out 15 to 45 days before the expiration of the subsidy or before COBRA benefits expire (laid-off employees are only eligible to purchase COBRA health insurance continuation coverage for 18 months after they are laid off or quit).

In other words, employers have to send out expiration notices to some former employees who have been receiving COBRA coverage that their 18 months is up.

Some employers should already have sent out expiration notices.

Employers or plan administrators must notify employees receiving COBRA subsidies no more than 45 days before Sept. 30 and no less than 15 days before they will lose the subsidy. Sept. 15 is the absolute last day to send the notices.

Who should you send notices to?

If you have any former employees who are receiving COBRA premium assistance you must send them an expiration notice, even if they have reached their maximum coverage period of 18 months.

There were three ways a former employee could qualify for the subsidy:

  • Eligible individuals who had a COBRA election in place as of April 1, 2021.
  • Eligible individuals who did not have a COBRA election in place (but were previously offered COBRA under federal law) could start to receive the subsidy on April 1.
  • Eligible individuals who experience a COBRA qualifying event between April 1 and Sept. 30.

What should the notice say?

The IRS has created a model expiration notice, which you can find here.

While it is not mandatory that you use the model notice, it’s a good idea, because using it demonstrates “good faith” compliance with the law.

Here are the details you’ll need to include in the notice:

  • Date of the notice.
  • Names or status of the beneficiary.
  • Name of the group health plan or insurance policy.
  • Whether the beneficiary is receiving the notice because their maximum COBRA continuation period is ending (18 months) or because the subsidy is expiring.
  • Date on which the maximum period of continuation coverage will end, or the date of the end of the COBRA subsidy. Depending on their premium period, their subsidized COBRA coverage can last beyond Sept. 30, according to the IRS.
    Under the rules, the subsidy continues until the end of the last “period of coverage” beginning on or before Sept. 30. In other words, if premiums are usually assessed on a monthly period basis, including the period from Sept. 26 to Oct. 26, the subsidy would cover the entire period ending on Oct. 26.
  • Monthly premium cost that the beneficiary must pay to keep their continuation coverage going after the subsidy expires. It must also include other coverage options.

Employers Mull Higher Health Plan Cost-Sharing for Unvaccinated Staff

Some employers are considering a new incentive for their workers to get vaccinated against COVID-19: Charging them higher health insurance premiums if they don’t.

A recent brief from consulting firm Mercer reported that employers are looking at surcharging the health insurance premiums for employees who refuse vaccination for reasons other than disability or sincere religious belief. Many employers apply similar surcharges for employees who use tobacco.

The news comes as the Delta variant of the coronavirus that causes COVID-19 has sent infection rates soaring, with reports indicating that most new cases are occurring in people who have not been inoculated.

Employers may choose this option for a simple reason: The large costs of hospital stays and treatments for COVID-19 patients. When health plans incur large claim costs, they must either accept lower profits or make up the difference by spreading the costs among plan participants. Charging higher premiums penalizes vaccinated and unvaccinated employees alike.

The U.S. Equal Employment Opportunity Commission has said that it is permissible for employers to require workers to be vaccinated. However, many employers have been hesitant to take that step, fearing negative employee reactions, waves of resignations and bad publicity.

Freedom of choice

Surcharging insurance premiums for unvaccinated workers may be an appealing alternative for some employers. Rather than ordering employees to get vaccinated, they would leave them free to choose.

Those who would rather bear higher costs as a consequence of refusing a vaccine would be free to make that choice. In turn, vaccinated employees would not have to subsidize the health care costs of colleagues who make riskier decisions.

A Mercer spokesperson has estimated that any surcharges would be in the range of $500 to $1,300 per year.

Extra costs like that might induce reluctant workers to get the shots. If unvaccinated employees decide to get vaccinated in order to avoid a surcharge, the workplace should be safer and more productive. Absenteeism due to illness can negatively impact productivity.

The takeaway

Employers need to consider the following before implementing surcharges:

  • The EEOC has provided guidelines for employers wishing to offer vaccine incentives. Employers should stay within those guidelines.
  • Are the incentives necessary? They might not be in areas or workplaces where vaccination rates are already high.
  • The line between “encouraging” and “coercing” employees to get vaccinated is not well-defined. Employers should avoid imposing surcharges that could be viewed as coercive.
  • Some employees have pre-existing health conditions that make the vaccinations unsafe. Others seriously practice religions that forbid their use. Federal law requires employers to accommodate these workers.

Deductibles Shift Drives Interest in Critical Illness Cover

If you want to provide your employees with the one voluntary benefit that can give them peace of mind should tragedy strike, critical illness coverage is the answer.

Demand has grown for critical illness insurance over the last year thanks to the pandemic and as a result of employees taking on more of the cost burden in their employer-sponsored health plans.

According to the Kaiser Family Foundation’s “20120 Employer Health Benefits Survey,” the average deductible for self-only plans of all types was $1,644 in 2020, up from $917 a decade earlier.  And many employees have deductibles upwards of $6,000 if they are in certain high-deductible health plans, which have become increasingly common.

As a result, many employers have begun enhancing their voluntary benefits offerings to include critical illness or cancer coverage to help offset the risk for employees and increase satisfaction and retention.

Interest grows

In part, employee interest in critical illness insurance stems from the chain of events that may have cut back their benefits and caused their deductibles to skyrocket. They are looking for peace of mind should they be stricken by a serious illness.

In addition, advances in medicine and technology that have prolonged life also make critical illness coverage more attractive. 

Finally, the COVID-19 pandemic put into sharp focus just how quickly someone can be sidelined by a sudden and serious illness.

Consider that out-of-pocket costs for treating a critical illness can start at around $15,000 and climb from there, and that lost income can be as much as $60,600, according to a 2020 MetLife study.

In other words, battling a critical illness could be just the tip of the iceberg. If someone’s lucky enough to survive a critical illness, they may still suffer major financial damage due to high medical bills and restricted income. 

To stave off debt, some people dip into, or deplete, their retirement savings and end up paying extra due to resulting taxes, fees and reduced health insurance subsidies. 

However, other adults don’t even have enough, or near enough, of a nest egg saved to cover all the costs.

Enter critical illness coverage

Critical illness coverage provides a lump-sum payment that a policyholder can use for any expense if they’ve been diagnosed with a serious illness. 

Mostly, this insurance only pays out for one occurrence of a listed condition. And once that payment is made, the policy is terminated.

But insurers have started offering policies that cover a wider variety of conditions and allow beneficiaries to receive multiple payouts if they suffer from a reoccurrence or another condition entirely.

As a result, more employers are offering voluntary critical illness coverage. According to Mercer’s “2020 National Survey of Employer-Sponsored Health Plans,” more organizations are offering this insurance in a direct response to the COVID-19 pandemic.

And Willis Towers Watson’s “2021 Emerging Trends in Health Care Survey” found that 57% of employers polled were offering critical illness coverage to their staff in 2021, and that 75% were planning to offer it by 2022 or beyond. That’s an increase of nearly one-third. 

Often offering this coverage costs the employer nothing or very little. Call us for more information on this valuable benefit that more workers are demanding.

What You Need to Know About New Health Plan Transparency Rules

Regulations are slated to take effect over the next few years that will greatly increase the transparency requirements for group health plans.

The regulations issued under the Trump administration will require health insurers in the individual and group health markets to disclose cost-sharing information upon request, make cost-sharing information available on their websites and disclose negotiated rates with in-network providers.

The rules are designed to help health plan enrollees choose the plan that is best for them and their family, as well as to give them a full picture of what they can expect to pay for services as part of their deductibles, copays and coinsurance.

There are a few different parts to the rules: one focuses on personalized cost-sharing information and another focuses on other pricing and information that insurers are required to post on their websites.

Personalized cost-sharing information

The new rules require health plans to provide personalized estimates for enrollees upon request, so they can calculate their potential out-of-pocket expenses prior to receiving medical treatment.

The following must be provided to a plan enrollee upon inquiry ahead of receiving care:

Estimated cost-sharing liability — This covers how much the enrollee would have to pay out of pocket under their plan for deductibles, coinsurance and copays for a specific medical service. These estimates must be specific to the individual that’s inquiring and not a general estimate.

Accumulated out-of-pocket payments — Enrollees can inquire to their health plans about how much they’ve paid out towards their deductibles and their plan’s out-of-pocket maximums as of the date requested.

In-network rates — Upon request, the plan must divulge how much the enrollee will have to pay out of pocket in relation to the rates it has negotiated for a specific procedure by an in-network provider.

The plan or insurer must disclose the negotiated rate, expressed as a dollar amount, even if it is not the rate the plan or insurer uses to calculate cost-sharing liability. The plans must also disclose out-of-pocket liability for an individual as well as the negotiated rates for prescription drugs. The health insurer does not have to disclose drug discounts or rebates as part of the inquiry.

Out-of-network allowed amount — The insurer must disclose the maximum amount its plan will pay for an “item or service” from an out-of-network provider.

Notice of prerequisites to coverage — If the service the enrollee is inquiring about prior authorization, concurrent review or step-therapy, the insurer must include this information in the answer to the request.

This part of the regulation will take effect in two phases:

  • 1, 2023: Insurers will be required to provide personalized cost-sharing information on 500 specific services.
  • 1, 2024: Insurers will be required to provide personalized cost-sharing information on all specific services.

Publicly available cost-sharing information

The new regulations also require health plans (not including grandfathered ones) and health insurers to post on their websites machine-readable files with detailed pricing information. They must post this information starting Jan. 1, 2022.

The website must include the following information, which has to be updated on a monthly basis:

  • Rates for all covered items and services that the plan has negotiated with its in-network providers.
  • Historical payments the insurer has made to out-of-network providers, as well as the billed charges.
  • The plan’s in-network negotiated rates and historical net prices for all covered prescription drugs at the pharmacy location level.

Rules Allowing Mid-Year Health Plan, FSA Changes Will Sunset

A temporary rule that allowed covered employees to make mid-year election changes to their health plans and revisit how much they set aside into their flexible spending accounts (FSAs) will sunset at the end of the year.

The rules gave employers the option to allow their employees to make changes to their health plans, including choosing a new offering, but it did not require that they allow them to make these changes.

The more relaxed rules were the result of provisions in the Consolidated Appropriations Act, 2021, which was signed into law in December 2020 by President Trump, and subsequent regulatory guidance by the IRS.

In response to the COVID-19 pandemic, the IRS liberalized the rules for cafeteria plan mid-year election changes for health plans and FSAs in the 2021 plan year. During 2021, employers may permit employees to make election changes without affecting their status. The rules that were relaxed:

  • Allow employees who had declined group health insurance for the 2021 plan year to sign up for coverage.
  • Allow employees who have enrolled in one health plan option under their group health plan to change to another plan (such as switching insurance carriers or opting for a silver plan instead of a bronze plan).
  • For health FSAs, allow participants to enroll mid-year, increase or decrease their annual contribution amount, or pull out of the plan altogether and stop contributing.
  • For plan years ending in 2020 and 2021, employers are permitted to modify their health FSAs to include a grace period of up to 12 months to spend unused funds from the prior policy year.
  • Allow for a higher carryover amount than the typical $500.

But, all plans that take effect on or after Jan. 1, 2022 will revert to the old rules that bar mid-year election changes and limit the grace period for spending unused FSA funds to just two and half months after the end of the prior policy year.

The takeaway

The rules coming to an end will only affect those employers who opted to allow their employees to make changes to their health plan choices and/or their FSAs. If you didn’t make this move, there is nothing you need to do.

If you did permit your staff to make these mid-year changes, you will need to communicate to them as soon as possible and before and during open enrollment that mid-year changes will not be possible in 2022.

When telling them about the rules change, make sure to inform them of the permanent rules and when they take effect again.

Also, if you extended the grace period and/or the carryover amount for FSAs, inform them that the carryover grace period will revert to two and half months and that the maximum carryover amount will revert to $500.

Group Health Insurers Not Factoring In COVID-19 Effects in 2022 Pricing: Study

In a glimpse of what we may expect in terms of premiums, a new study by the Kaiser Family Foundation has found that most insurers are not factoring in added costs or savings related to COVID-19 for their 2022 health coverage rates for personal health plans in 13 states and the District of Columbia.

The insurers expect health care utilization to return to pre-pandemic levels by 2022, according to the analysis by KFF.

While the analysis focused on the individual market, KFF found that insurers were making similar assumptions about how COVID-19 would affect their group market costs and pricing.

Despite them not expecting significant effects from COVID-19, there are other issues that are on health insurers’ radars that are likely to increase rates, including the costs of treatment that was delayed in 2020, the continued use of telehealth services and new federal regulations in response to the pandemic. A recent survey by PricewaterhouseCoopers found that employers are expecting an average rate increase of 6.5% for group health coverage.

It’s clear that most insurers are viewing the COVID-19 pandemic as a one-time event, with limited, if any, impact on their 2022 claims costs. KFF referred to the pandemic’s effect on rates as “negligible.”

The foundation looked at rate filings of 75 insurers and only 13 of them stated that the pandemic would increase their costs in 2022, but even then, most of them predicted an effect of 1%. The reasons those 13 insurers cited for the expected higher costs include:

  • Costs related to ongoing COVID-19 testing, treatment and vaccinations.
  • Anticipated vaccination boosters.

Delayed treatment, policy changes

While most insurers don’t expect to be paying out excessive amounts for treatments and medications related to COVID-19 infections, they are concerned about the increased flow of patients seeking treatment for procedures they postponed last year.

Those postponements have led to pent-up demand, driving higher utilization in 2021, which some health plans expect will spill over into 2022.

As a result, some insurance companies have filed rates that include a “COVID-19 rebound adjustment” to account for the services that were deferred in 2020.

Other carriers have filed for rate increases based on predictions that those delayed services will lead to an exacerbation of chronic conditions. Some are also predicting that COVID-19 “long-haulers” could push claims costs higher.

On top of all that, insurers this year have had to make decisions about benefits, network design and premium pricing in the face of the pandemic and federal policy changes that could dramatically expand coverage under the Affordable Care Act.

Other concerns

Some insurers are concerned about the costs associated with the explosive growth of telehealth services during the pandemic. These tele-visits boomed as people were avoiding doctors’ offices due to stay-at-home and social distancing orders and to reduce the chances of COVID-19 transmission.

Kaiser Permanente in one of its filings wrote: “We anticipate the high utilization of telehealth services to persist beyond the lifespan of the outbreak into the foreseeable future.”

Another insurer, MVP in Vermont, said that while it has seen costs associated with in-person ambulatory services increase this year and a return to in-person visits, it has not seen a reduction in use of telehealth services.

Finally, Blue Cross Blue Shield of Vermont in its filing predicted that the increased expenditures for mental health services (demand for which spiked in 2020 as people wrestled with isolation and depression aggravated by the pandemic) would continue in 2022 and beyond.

The insurer predicted that claims for mental health and substance abuse treatment would climb 20% from 2020 to 2022.

Few Health Plan Enrollees Know About New Price Transparency Rules

Despite a new law requiring hospitals to post detailed pricing information for their treatments and procedures online, fewer than 10% of U.S. adults are aware of the requirement.

That’s a problem considering that a growing number of Americans have high-deductible health plans, which come with up-front lower premiums but with higher out-of-pocket expenses.

One of the driving forces behind HDHPs is that they give the enrollee more “skin in the game,” by incentivizing them to shop around for care since they will have to pay for it themselves up to their deductible.

But if people are not aware they can find pricing for medical services on providers’ websites, they may not know how to begin comparing prices.

A new study by the Kaiser Family Foundation found that only 9% of those surveyed were aware that hospitals are required to publish the prices for their services online, in line with new price transparency regulations that took effect Jan. 1, 2021.

The price transparency rule, implemented by the Trump administration, requires hospitals to post on their websites:

  • A plain language description of each shoppable service and item.
  • A description of charges, including:
    • Payer-specific negotiated charge, or the price a third party payer such as a health insurance company would pay.
    • Discounted cash price, or the price a patient would pay without insurance.
    • Gross charge, or the charge absent any discounts.
    • De-identified maximum and minimum negotiated charges for each.
  • Any primary code used by the hospital for purposes of accounting or billing.

Here’s what the survey found:

  • 69% of respondents were unsure whether hospitals are required to disclose the prices of treatments and procedures.
  • 22% believed hospitals are not required to disclose this information.
  • 9% were aware hospitals are required to disclose the prices of treatments and procedures on their websites.
  • 14% said that they or a family member had gone online in the past six months to research the price of a treatment at a hospital.
  • Younger adults (ages 18 to 49) were more likely to say they or a family member had searched for the price of care online.

Educating your staff

Employers with HDHPs should inform their staff about the price transparency rule so that they can research pricing ahead of any procedures they may have. Most health system websites should be posting their pricing by now, but it may take some digging to find them. 

If they have been ordered to get a certain procedure, they can start by going to each provider available to them through their health insurance and researching the pricing on their website. If they can’t find the information, they should call the provider to get the information. They will need the negotiated price between their health plan and the provider.

Prices can vary dramatically between providers, and your staff need to make sure they are comparing the exact same service between them.

They should also consider calling the providers and inquiring about the cash price for the services. In some instances, the cash price may end up being even less than their deductible or copay.

One problem: Many hospitals have not published their rates and there has been a lack of consistency between providers in terms of how they are providing the information.

This has prompted the CMS to audit hospitals’ websites and complaints, and it recently started sending out notices to hundreds of hospitals that are not complying with the transparency regulations.

Finally, many insurance carriers offer searchable online databases for their enrollees where people can research the approximate cost of certain procedures among all the providers available to them.

Attention Employers: IRS Ramping Up ACA Compliance

There are signs that the Internal Revenue Service is starting to step up its enforcement of the Affordable Care Act employer mandate.

During the past six months, there’s been an uptick in the number of employers receiving initial notices stating they may be out of compliance with the requirement that they offer their workers coverage. 

Also, the IRS has announced that it will no longer provide “transition relief” to employers that file incomplete 1094/1095C forms, make mistakes on them or fail to file them. 

Notices were recently sent out for the 2018 tax year. Many of the proposed assessments would result in penalties that are in the millions.

The IRS is charged with ensuring that employers with 50 or more full-time or full-time-equivalent workers comply with the employer mandate, which requires them to offer them health coverage that is affordable and covers 10 essential benefits, as per the ACA. These “applicable large employers” (ALEs) are subject to penalties for not complying.

For 2021, the fines are as follows:

Internal Revenue Code Section 4980H(a) violations: $2,700 per employee. This penalty applies when an ALE does not offer coverage or offers coverage to less than 95% of its full-time staff (and their dependents), and when at least one full-time employee receives a premium tax credit to help pay for coverage through a marketplace exchange.

Internal Revenue Code Section 4980H(b) violations: $4,060 per employee.This applies when an ALE offers coverage to at least 95% of its full-time employees (and their dependents), but at least one full-time worker receives a premium tax credit to help pay for coverage through a government-operated marketplace.

This can occur if the employer did not offer coverage to that particular employee or because the coverage they were offered was either unaffordable or did not provide minimum value.

What the IRS is doing

No statute of limitations for 4980H violations — At the end of 2020, the IRS Office of Chief Counsel issued a memo that stated there is no statute of limitations for employers to avoid penalties for violating Section 4980H.

This means that ALEs who fail to comply with the ACA can be hit with penalties at any time in the future once the IRS discovers the violation.

Ceasing its ‘good faith transition relief’ — This was intended to temporarily give employers more time and a break on penalties when they report incomplete or incorrect information on their 1094/1095C forms. Last year was the final year this good faith transition relief would be offered. The IRS explicitly noted that it would not be extended again.

The relief available to employers who needed it included a 30-day extension for meeting the deadline to file IRS Form 1095-C, as well as good faith relief from penalties for making mistakes, filing incomplete or not filing the ACA-related forms with the IRS or not filing on time.

What to do

The IRS has been sending out notices of ACA non-compliance for the 2018 policy year.

If you receive one of these notices — a Letter 226-J — you need to act quickly to avoid penalties as you have just 30 days to respond. If you need more time, the most that the IRS will likely grant you is a 30-day extension.

Regardless of if you’ve received a notice, you may want to review your 2018 ACA filings. If you identify any mistakes in them, you can correct the filings before the IRS will issue a Letter 226J penalty notice or another type of penalty.

To avoid penalties related to the annual filings of the 1094/1095C forms, make sure that you stay on top of filing deadlines. Also, ensure that the forms are correct and complete to avoid penalties. You can expect the IRS to be diligent in reviewing these forms.

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