In the early morning hours of July 28, 2017 the Affordable Care Act withstood another effort by the Republicans to repeal and replace it. Opposition to the “Skinny Bill” won during the most recent Senate action, and so, repeal and replace appears to come to a halt. The bill was referred to as “skinny” as it would have eliminated the individual mandate penalty and temporarily repealed the employer mandate penalty and medical device tax.
So, the question now becomes, what next? Below are some of the issues that our lawmakers will be taking into consideration:
• Take steps to ensure the stability of the individual insurance market; or
• Pursue strategies that will quicken the demise of the ACA (such as destabilizing the insurance market;
• Stop payment of the Cost Sharing Reduction (these are funds the government provides to insurers to help cover out-of-pocket expenses for low income individuals);
• Further advocate “State Innovation Waivers” which allows states to implement their own innovative ways to provide quality, comprehensive and affordable health while maintaining basic protections under the ACA; or
• Enforcement of both the individual and employer mandate penalties through a separate Executive Order overriding the Order issued on January 20th suspending ACA-implementation.
Although it appears that the Affordable Care Act is in a state of flux, for employers it could not be further from the truth. The ACA remains the “law of the land”, employers need to stay the course with their ACA compliance priorities until further notice. The employer mandate requires “applicable large employers” (ALEs) to offer minimum essential coverage that is minimum value and affordable to 95 percent of its full-time employees and their dependents. Failure to offer such coverage can result in penalties. The associated ACA reporting requirements are also still effective, ALEs who failed to provide Form1095-C to its full-time employees, or Form 1094-C to the IRS should discuss this issue with their legal counsel. The penalty for failing to issue a 1095-C is the same as failure to provide a W-2; $250 per failure in 2016 and $260 per failure in 2017. However, there is another jolt to this point, since the 1095-C is required to be provided to the employee and to the IRS, those penalty amounts would be doubled. An employer’s determination of being an ALE is based on having an average of 50 full-time/full-time equivalent employees in the preceding calendar year.
As to what will happen in the future as to any repeal and replacement of the Affordable Care Act remains to be seen. However, unless and until official guidance to the contrary is provided, ongoing compliance with the law is required.