Five Strategies to Avoid Shared Responsibility Payments under the Affordable Care Act

If your business is worried about the potential cost of shared responsibility payments in 2015, you are not alone. Perhaps your company does not offer group health insurance now or your employee health plan does not meet the minimum essential coverage requirements under the Affordable Care Act (ACA). Now with only 90 days until the new tax penalty becomes effective, mid-sized employers are scrambling to find an affordable strategy. Transitional relief provisions help businesses in 2015, especially those with 50-99 employees. Employers in low margin industries like retail and food service have already begun testing these defensive cost control strategies so we now have a limited amount of experience to make these suggestions.

The basic underlying requirement is that beginning January 1, 2015 an employer with 100 or more full time employer’s must offer health insurance to avoid the shared responsibility payment. That health coverage must: a) be available to 70% of full time employees, b) meet minimum value rules, and c) cost less than 9.5% of an employees total household income. The rules get much tougher in 2016, encompassing employers with 50 or more employees and requiring coverage for 95% of employees and dependents. The penalty calculation formula also changes in 2016 resulting in a hike in the employer’s penalty.

The employer shared responsibility penalty is large enough to scare any small business owner. The minimum employer shared responsibility penalty for an employer who provides no health coverage in 2015 is $40,000 for a company with 100 employees. The penalty rises by $2,000 for each employee above that. In 2016 the penalty increases sharply due to the expiration of transition rules that are not discussed in this article. An alternate penalty is available if the employer provides some health coverage but this coverage fails one or more of the requirements of the law. In most cases the alternate penalty is lower than the regular employer shared responsibility payment.

This checklist below assumes that your goal is to reduce the maximum cost of ACA compliance to dollar amount that is less than the amount of the penalty1 and that you have already determined that your firm is large enough to trigger the shared responsibility payment requirement. It also assumes that the price of minimum value group health insurance is greater than the calculated tax penalty; that providing the plan as proposed by ACA would be the highest cost approach and is not practical for the employer.

Five strategies to consider:

  1. Offer employee health coverage at the maximum price of 9.5% of an employee’s total household income.2 Employers can stipulate and control the price of employee health coverage by combining insurance with a Health Reimbursement Arrangement (HRA) or Health Savings Account (HSA), or both. Early experience indicates that few employees will enroll in coverage at that highest price allowed under the law, especially in lower wage industries. The business is not penalized on the employees who are offered coverage but decline to enroll.
  2. Change to part time employees so that insurance is not required. Many firms have already adopted this approach by reducing work schedules below 30 hours per week.
  3. Use independent contractors to outsource tasks formerly handled by employees.
  4. Turn employees into their own self-employed business segments.
  5. Offer mini-med insurance. This is still allowed in most states until 2015 and is less expensive than Obamacare plans. It covers basic health expenses but not catastrophic or chronic treatment claims. This strategy preserves the employees’ rights to obtain primary coverage through the exchange. In this case the alternate penalty is $3,000 for each employee who receives a subsidy on the exchange. In most cases this will be substantially less than the regular shared responsibility payment.3

Business managers may conclude that none of the options are really attractive. We understand that implementation of the Affordable Care Act will take a toll on almost everyone except for those who receive subsidized coverage.

Finally, If you use any of these cost-saving approaches, it makes sense to pair your strategy with an employee health benefits consulting service. Make sure it is an independent service, not affiliated with the provider of your health insurance. find an independent adviser whose only interest is advising your employees on the best coverage options and how to pay for it. Remember that ACA implementation is challenging for everyone and it makes sense to provide someone who can bear the bulk of employee concerns with their changing coverage. This service costs less than 10% of the penalty (because not all of the employees actually use it) but goes a long way toward rebuilding employee financial confidence.

Footnotes

1When most employees earn less than 400% of federal poverty level, as is common in retail, food service, agriculture and other industries, it still makes sense to just pay the penalty. You’ll be doing your employees a huge financial favor because they will qualify for larger subsidies and, as a result, enjoy lower cost coverage through the exchange than the employer could ever offer. Many of the nation’s major employees have already selected this option and more are likely to follow.

2Since employers generally do not know an employees total household income, most employers will rely on a safe harbor provision where the calculation uses the employee’s income only. However, there is no prohibition on using the employee’s total household income as stated in the law. This is best accomplished by adopting a health care planning service as described in the past paragraph of the article.

3This cost savings concept is well illustrated in graphical format in an Employer Mandate Fact Sheet by Cigna.

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