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Obamacare Repeal and Replacement Plan- What does it mean for Employers?

Legislation introduced to repeal portions of the Affordable Care ActLate in the afternoon on March 6, two committees of the U.S. House of Representatives introduced legislation that would replace and repeal significant portions of the Patient Protection and Affordable Care Act, also known as the ACA or Obamacare. The new legislation, titled the American Health Care Act, addresses a number of key complaints that have been raised by employers since the ACA's implementation. Several provisions of the new legislation that are of particular interest to employers are described briefly below.

Dismantlement of Employer Mandate

In general, the ACA's Employer Mandate requires certain large employers (those with 50 or more full time equivalent employees) to offer health care coverage to their full time employees (those working 30 or more hours per week) or pay a penalty. The American Health Care Act does not repeal this mandate, but it does reduce the penalty that is associated with a large employer's failure to offer health care coverage to $0. That means that there would be no penalty if a large employer did not offer coverage to a full time employee. The change also provides flexibility to employers that do offer coverage to define a "full time employee" by means other than a 30 hour work week and to establish waiting periods for coverage in excess of 90 days, for example.

Retention of Certain Patient Protections

The ACA introduced significant mandates related to the type of benefits that must be provided by a group health plan. While the status of certain ACA mandated benefits remains unknown, the American Health Care Act retains a number of patient protections that are provided under the ACA. It preserves the prohibitions against pre-existing condition exclusions and annual or lifetime limits on health care benefits. Additionally, it continues to allow a dependent child to remain on his or her parent's health care plan until attaining age 26.

Relaxation of Reporting Requirements

In order to evaluate compliance with the Employer Mandate (and related Individual Mandate), the ACA implemented burdensome tax reporting obligations on certain employers and insurers. The American Health Care Act relaxes those reporting requirements and introduces a new process by which an employer's reporting obligations may be satisfied with a disclosure on a particular employee's annual Form W-2.

Encouragement of Alternative Health Care Arrangements

The ACA contains a number of provisions that serve as a disincentive for employers to use alternative, non-group health plan arrangements to provide coverage to their employees. Those disincentives are primarily tax-related and were modified by the American Health Care Act. For example, the American Health Care Act permits over-the-counter drugs to be reimbursed on a pre-tax basis (without a prescription), repeals the annual limits on contributions to a health flexible savings account (currently at $2,600), increases the annual maximum health savings account limits and lowers the tax on distributions from health savings accounts that are not used for qualified medical expenses.

Repeal of Cadillac Tax

The ACA imposes a tax on certain high-cost, employer-provided health plans beginning in 2020. The American Health Care Act delays this "Cadillac tax" until 2025.

After the introduction of the American Health Care Act, employers are justifiably optimistic but should remain cautious. We recommend that employers refrain from making any significant changes to their health insurance programs until after any legislation is officially enacted and adopted. Until that time, employers should continue providing coverage and otherwise following the requirements of the ACA. If you have any questions about your health care programs or additional options that may become available as a result of the American Health Care Act, please contact Mindi Johnson or Lauren Dunn.

Categories: Employment, Health Care Reform, Providers

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With a business-minded approach, and service-oriented delivery, Mindi helps clients navigate challenges and solve problems in the areas of employee benefits law and health care law. Mindi has spoken and written extensively on employee benefits, health care reform, and health care law topics, and is actively involved in a number of legal, professional and industry organizations focused on these issues.

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Best Lawyers® 2021

Congratulations to the attorneys of the Health Care practice group at Foster Swift Collins & Smith, PC for their inclusion in the Best Lawyers in America 2021 edition. Firm-wide, 44 lawyers were listed. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation and as lawyers are not required or allowed to pay a fee to be listed; inclusion in Best Lawyers is considered a singular honor. Health Care practice group members listed in Best Lawyers are as follows:

To see the full list of Foster Swift attorneys listed in Best Lawyers 2021, click here.