Those who expected a Trump presidency and GOP-controlled Congress to snuff out ACA are left to toe the line on compliance in 2018.
By Brian Johnston
Despite political and ideological differences of opinion about the results of the 2016 elections, with the beginning of 2017 and new, Republican president and GOP-controlled Congress, many employers felt an air of optimism about the future of employer-sponsored health care, and an employer’s compliance responsibility under the Affordable Care Act (ACA).
Instead, we not only end 2017 with EXACTLY the same laws as were on the books for 2016 but possibly even more puzzling, there is even LESS certainty as we head into 2018 and beyond! History will at some point give us the benefit of hindsight to try to explain the long-term effect, but for now all we can do is look at those things which are certain, which are uncertain, and what recommendations we can then make as a result.
The Affordable Care Act is still the “law of the land” for employers who choose to offer health insurance to its employees. Employers with 50 or more employees have even greater compliance responsibilities, or face penalties for not offering qualifying coverage at an “affordable” price. Annual “Form 1094/1095 Reporting” must continue so the IRS knows whether the employer has fulfilled the above obligations, and the IRS is now sending “Letter 226J” notices to employers it believes may be in violation for not providing the coverage they are obligated to provide. Employers also still have an obligation to provide annual notices to employees about their coverage options, or potentially face separate penalties from the Department of Labor. Other compliance responsibilities also remain under ERISA, COBRA, HIPAA, FMLA and a host of other applicable laws.
Although it is “certain” that the ACA remains in existence, it is less certain about what that means for employers going forward. Even with the collapse of GOP efforts to repeal/amend the ACA, President Trump still appears committed to changing the way in which the federal government enforces those laws; he has issued an executive order to have the IRS, Labor Department and Department of Health and Human Services consider allowing employers to offer health coverage in other ways, and regulatory efforts are under way as a result. We also know the GOP efforts to pass a tax-reform bill may still have provisions that impact the ACA in some fashion. We just don’t know yet what those changes are or when they will take effect. More important, we don’t have any idea as to what such coverage alternatives would actually cost, though rate increases of 30 percent, even 40 percent, for small employers are not unrealistic. We may also have fewer health insurance provider alternatives based on this ever-changing landscape.
Employers are understandably not happy with the current landscape, where they are still faced with burdensome legal mandates when they provide health insurance to their employees, and with costs that continue to rise. Nonetheless, all is not lost and there are still steps that can be taken to continue offering health insurance coverage to employees without putting the company into bankruptcy:
Brian Johnston isa principal in the Overland Park office of the Jackson Lewislaw firm.
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