Posted on August 17th, 2017

Two weeks removed from the latest round of the Congressional circus, we can put the recent events into perspective and look ahead to what is next.  The end result and big picture is that Congress has failed to repeal, replace, repair or even modify the ACA in any significant way, and as of today the ACA remains the law of the land.

In communications with employers, I sense continuing confusion and need for clarity.  My advice to you as an advisor is to consider a practical way to communicate the status of the ACA and key issues between now and enrollment season for 2018.  A sample written message for employers is below that you are welcome to use.  I also suggest that you consider a more detailed update and session this fall to provide clarity and assistance.  If our team can assist you with a webinar or workshop for your clients, contact us.

Message to Employers

Despite the intense and well publicized efforts by Congress to repeal or repair the ACA since the beginning of the year, the law has not changed and the ACA remains in full effect.  It is possible that Congress will resume efforts to change the law in coming months.  However, for now we must assume that the law will not change, and employers should continue to comply with the provisions of the ACA, including the employer mandate.

The Executive Order issued by the President in January did not change the law and has to date had no meaningful impact on ACA compliance.  In fact, the IRS has in recent months released four separate information letters affirming that the employer mandate, individual mandate, and related provisions remain in force.  The IRS is not relaxing its efforts to enforce the employer mandate or reporting provisions, and employers subject to these rules should continue to comply.  As advisors, we will continue to monitor the status of the law and be prepared to help you comply as well as make any future adjustments as appropriate.

What is Next?

I will not speculate on what Congress will or will not do regarding the ACA after the August recess.  It appears that Congress will focus its efforts on tax reform, which will likely be an involved and extended process.  A new tax reform law could, in theory, address some elements of the ACA that relate to taxation (employer mandate, individual mandate, medical device tax, Cadillac tax).  However, given the public failure of the Senate, Congress may stay away from the ACA for a while.

Of course, employers and stakeholders remain in limbo regarding not only group level compliance, but also the individual insurance market.  The availability of cost-sharing reductions for Marketplace coverage continues to be an issue.  There is a continuing federal lawsuit involving payments for cost-sharing reductions, and administratively the President could in theory refuse to fund payments for 2018 and create a ripple effect.

With 2018 open enrollment around the corner for individual and group plans, there are many questions to be answered.  For now, it appears that we will have to wait and see what the carriers and other market forces do during this period of limbo.

Continuing Developments

Three quick updates on developments while attention was focused on Washington:

  • IRS released draft ACA reporting forms for the 2017 tax year (Forms 1094-C, 1095-C, 1094-B, and 1095-B).  While the draft forms reflect only minor changes from the 2016 forms, it is anticipated that these requirements will remain in effect for Applicable Large Employers without reprieve for this year;
  • HIPAA enforcement efforts by HHS continue; and
  • Focus continues on COBRA compliance as employers in certain markets face litigation over COBRA election offers and content of required notices.

Next Webinar & Key Topics for Fall

Our next advisor webinar on Tuesday, August 29 (click here to register) will include an update on the status of the ACA, additional recent developments, and a look ahead to key steps for open enrollment.  Again, my primary recommendation to you this fall is to find a meaningful way to communicate to your clients the status of the ACA and other big picture issues.  We will do our best to provide updates via webinar and blog on key compliance issues.  A sample of training and content topics available for the fall include:

  • Guided employer quiz on basic, key compliance issues
  • 10 common benefits compliance mistakes by employers
  • 2018 compliance checklist
  • Guide to open enrollment steps & required employee notices
  • A practical guide to handling leaves of absence (new training to address a popular current topics)
  • ACA reporting refresher & training (2017 forms due beginning 1/31/18)
  • ACA eligibility & employer mandate refresher & training
  • Benefits tax analysis
  • How to be prepared for a health/welfare benefit plan audit

Best wishes for an enjoyable end to summer as we prepare to start another fall and benefits season.

By Jason M. Cogdill, Attorney at Law, The Cason Group Compliance Partner