On December 14, 2018, a US District Judge in Texas issued a ruling that the entire ACA was unconstitutional given that the individual mandate contained in it no longer had a tax penalty, the basis of the 2012 US Supreme Court ruling upholding the ACA’s constitutionality. However, employers should note that the ACA remains in full force and effect pending appeals, likely again to the US Supreme Court.
Posted on December 17, 2018 by Ian Thrasher
The IRS has issued Notice 2018-94, extending the due date for 1095-B and 1095-C forms to be sent to employees from January 31, 2019 until March 4, 2019. However, the Notice also points out that the regular due date for filing those same 1095-Bs and Cs with the IRS (covered by the 1094-C or 1095-C) remains the same: February 28, 2019 if filing paper copies or April 1, 2019 if filing electronically.
Posted on November 29, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
The IRS has announced the limits for employee benefit plans for 2019.
Posted on November 15, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
The employer mandate penalty notices for 2016 have been mailed the week of November 12, 2018. Better known as Letter 226-J, these notices inform employers of a preliminary penalty under IRC Section 4980H. In late 2017, the IRS began mailing notices for 2015 – with a reported 30,000 applicable large employers receiving Letter 226-J.
Posted on November 14, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
In a Private Letter Ruling (PLR), the IRS has recently sort of, kind of, maybe, in special circumstances enabled employers to make a matching contribution to their 401(k) plan on behalf of eligible plan participants who, instead of contributing to the 401(k), make certain qualifying student loan repayments instead.
Posted on October 18, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
When Congress passed the Medicare Prescription Drug, Improvement, and Modernization Act in 2003 implementing prescription drug coverage under Medicare (commonly known as Part D), it required all employers that offer prescription drug benefits to provide an annual notice to all Medicare-eligible plan participants and qualified beneficiaries before October 15th of each year, the start of the Medicare open enrollment period. This could include not only retirees and their dependents, but active Medicare-eligible employees and their dependents, and COBRA participants as well. For most employers, rather than determine which actives, retirees, dependents, and COBRA participants are Medicare-eligible, it’s easier to blanket the entire population with this annual notice.
Posted on September 08, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
Gary Kushner, President and CEO of Kushner & Company was interviewed by Workforce Management magazine during the 2018 SHRM Annual Conference in Chicago about the most often missed items in employers’ compliance with the ACA.
Posted on July 02, 2018 by Jennifer Alfieri, COO of Kushner & Company
Under the ACA, the Patient-Centered Outcomes Research Institute (PCORI) was established. The funding mechanism for PCORI was a fee on group health plans, including certain employer-contributed health care flexible spending accounts (employer FSAs) and Health Reimbursement Arrangements (HRAs). An IRS Form 720 is required to be filed each year by July 31st.
Posted on June 01, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
Starting in 2007, the Tax Relief and Health Care Act of 2006 (TRHCA) requires that the IRS release the upcoming year’s new HSA limits prior to June 1st. Here are the new limits for 2019
Posted on May 14, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
In May, 2017, the IRS released the 2018 HSA contributions limits in Rev Proc 2017-37, amongst other HSA-related indexed numbers, stating that the maximum contribution for those in family HDHP coverage would be $6,900. Congress then passed its Reconciliation Act in December, 2017, changing the indexing methodology for a number of benefit-related (and other) limits to utilize something called “chained-CPI,” as opposed to the regular CPI that had been used for decades. This in turn caused the IRS to recalculate its 2018 limits for benefit plans, and on March 2, 2018 issued Rev Proc 2018-18, retroactively reducing the 2018 family HSA maximum contribution amount by $50 to $6,850.
Posted on April 26, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
The Tax Cuts and Jobs Act, signed into law in December 2017, created a new business credit for employers that offer paid family and medical leave and which are subject to the Family and Medical Leave Act of 1993 (FMLA). In a pleasant surprise, employers with fewer than 50 employees are also eligible for this tax credit if they offer FMLA-like leave. The IRS released its first guidance on this new tax credit in a series of FAQs.
Posted on April 16, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
On March 5, 2018, the IRS published Internal Revenue Bulletin (IRB) 2018-10.
Effective for calendar year 2018, the family contribution limit for HSAs has been lowered to $6,850 from the previously set amount of $6,900.
Posted on March 06, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
The three week extension of the federal budget resolving the shutdown from January 19th through 22nd also contained a delay of the Cadillac Tax from 2020 to 2022.
Posted on January 23, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
When small employers make operational errors in their 401(k) or other retirement plans, and before the IRS or DOL provide a notice of an audit, the employer has the ability to self-correct under two different IRS programs: The Voluntary Compliance Program (VCP) and the Self-Correction Program (SCP) under the IRS’ Employee Plans Compliance Resolution System (EPCRS). It has always been in both the employer’s/plan’s and the IRS’ best interest to correct operational errors before an audit occurs, and since small employers are sometimes more likely to make inadvertent errors (such as missing a Required Minimum Distribution), small employers were previously given a break on the user fees in order to file under the VCP program.
Posted on January 09, 2018 by Gary B. Kushner, SPHR, CBP, President and CEO
Under the recently passed Tax Cuts and Jobs Act of 2017, employer-provided transportation benefits are somewhat pared back beginning in 2018.
Posted on January 03, 2018 by Gary B. Kushner, SPRH, CBP, President and CEO
The employer mandate, sometimes known as the “play or pay” clause of the ACA, imposes penalties on Applicable Large Employers (ALEs) if any of their full-time employees purchases individual coverage at the Health Insurance Marketplace (also known as an Exchange) and receives a premium tax credit while doing so for any month in the calendar year, beginning in 2015.
On November 2, 2017, the IRS announced its program to notify employers of a potential penalty under this provision for calendar year 2015.
Posted on November 16, 2017 by Gary B. Kushner, SPHR, CBP, President and CEO
The Internal Revenue Service has released Rev Proc 2017-36 to implement index adjustments in 2018 for certain Affordable Care Act (ACA) contribution percentages used for purposes of determining affordability under the employer shared responsibility mandate. These percentages are also used to satisfy any of the three safe harbors available to employers.
Posted on September 05, 2017 by Gary B. Kushner, SPHR, CBP, President and CEO
In a new IRS Notice, the period to provide the required notice to all participants of a new Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) is extended until no sooner than 90 days after the issuance of such guidance.
Posted on March 06, 2017 by Gary B. Kushner, SPHR, CBP, President and CEO
For the past few years, health plan sponsors have been required to complete an annual online disclosure form with the Centers for Medicare and Medicaid Services (CMS), reflecting whether the prescription drug coverage offered under the sponsor’s plan(s) is “creditable” (at least as good as Medicare Part D’s prescription drug benefit) or “noncreditable” (not as good). The plan sponsor must complete the disclosure within 60 days after the beginning of the plan year if it has any employees or dependents eligible for and receiving Part D prescription drug benefits.
Posted on January 19, 2017 by Gary B. Kushner, SPHR, CBP, President and CEO
In his January 13, 2017 Op-Ed piece, David Brooks argues that health care markets can, but don’t often work when consumers “purchase” health care. He’s not talking about health care coverage, but the actual receipt of health-related services. Yet he misses the most crucial reason that the delivery of health care services is not a market.
Posted on January 16, 2017 by Gary B. Kushner, SPHR, CBP, President and CEO
With the December 7, 2016 passage of the long-awaited Cures Act and President Obama having signed it into law, many small employers and their employees can now rejoice that an onerous IRS ruling is overturned. Starting January 1, 2017, small employers that do not offer group health insurance to their employees will have a tool to provide a tax-favored reimbursement to their employees. And more good news: there’s transition relief retroactive for all plan years beginning on or before December 31, 2016 that the onerous penalties announced by the IRS in Notice 2015-17 are no longer in effect.
Posted on December 08, 2016 by Gary B. Kushner, SPHR, CBP, President and CEO
The IRS has issued Notice 2016-70, extending the due date for 1095-B and 1095-C forms to be delivered to employees from January 31, 2017 until March 2, 2017. However, the Notice also points out that the regular due date for filing those same 1095-Bs and Cs with the IRS (covered by the 1094-B or 1094-C) remains the same: February 28, 2017 if filing paper copies or March 31, 2017 if filing electronically.
Posted on November 21, 2016 by Gary B. Kushner, SPHR, CBP, President and CEO
The IRS has just released the new 1094-C and 1095-C forms for 2016 for employer reporting of health coverage both to employees and to the IRS. There are many notable differences from the first year’s forms in 2015 that employers will need to prepare for now.
Posted on October 05, 2016 by Gary B. Kushner, SPHR, CBP, President and CEO
Employers are beginning to receive new ACA Marketplace notices. As you can well imagine, employers receiving these are often confused and sometimes frightened since the notice also contains language about IRS penalties. The employer shared responsibility penalties that may be imposed under the Affordable Care Act (ACA) are substantial, and no one wants to be responsible for failing to take action that may preclude an assessment of penalties.
Posted on September 30, 2016 by Gary B. Kushner, SPHR, CBP, President and CEO
We’re often asked if an employer can post a plan’s Summary Plan Description (SPD) on its company’s intranet website. The answer is a qualified yes, as long as certain rules are followed. The Department of Labor (DOL) provides a safe harbor for electronic disclosure of plan documents including the use of an intranet. The safe harbor sets forth general requirements for all electronic disclosures and additional requirements for recipients that do not have computer access at work.
Posted on September 15, 2016 by Gary B. Kushner, SPHR, CBP, President and CEO
The IRS has issued a bulletin notifying filers of Form 1094 and 1095 information returns that the Affordable Care Act Information Returns (AIR) Program system for accepting electronic returns will remain up and running after the June 30, 2016 filing deadline.
Posted on July 07, 2016 by Gary B. Kushner, SPHR, CBP, President and CEO
In the June 1, 2016 issue of Workforce Magazine, Kushner & Company’s President and CEO Gary Kushner proposes fixes to the Cadillac Tax on employer health plans. These fixes include utilizing the metal tiers of health coverage offered, removing health care FSA, HRA and HSA contributions from the calculation, and only assessing the Cadillac Tax on platinum level plans.
Posted on June 15, 2016 by Gary B. Kushner, SPHR, CBP, President and CEO
On a bimonthly schedule, Gary Kushner, our President and CEO, is invited to write a column for Workforce Management Magazine. In the April edition, he reviews many of the Q&A’s in IRS Notice 2015-87 issued at the end of last year.
Posted on April 01, 2016 by Ian Thrasher
Under the ACA Sections 6055 and 6056, all Applicable Large Employers (ALEs) [that is, employers with 50 or more full-time employees plus full-time equivalents] as well as all employers of any size whose health plan(s) were self-funded were to begin distributing IRS Form 1095-C to employees by February 1, 2016 (since January 31st was a Sunday). Those same employers were to file the IRS Form 1094-C along with a copy of each individual 1095-C with the IRS by no later than February 29, 2016 if filing by paper, or by March 31, 2016 if filing electronically. Similarly, for non-ALEs with fully insured plans, the insurance carriers were responsible for preparing and distributing 1095-B forms to employees and filing the 1094-B along with a copy of the individual 1095-Bs on the same timeline. Those deadlines are now extended only for the first 2015 filings of those forms.
Posted on December 28, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
Employers concerned about the implementation of the ACA’s so-called Cadillac Tax can breathe a bit of a sigh of relief today, as Congress has extended the Tax’s start date from 2018 until 2020. Many believe that this is only the first step in the eventual repeal of the tax.
Posted on December 18, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
In a very interesting article by NY Times columnist David Brooks, recent data on overall health care cost increases in the US shows annual growth at only 1.6 percent since 2010 (not coincidentally, the year of enactment of the ACA). Is this a permanent reduction, even in part, or is it a temporary reaction to any number of factors such as the 2008 recession, low general inflation, or a lack of significant technological gains in the medical field? Only time will tell, although the Congressional Budget Office has used the data this year to reduce its projection of Medicare expenditures in 2020 by $175 billion from its 2010 estimate.
Posted on November 07, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
The budget deal worked out between President Obama and Congressional leaders would, if enacted, have one impact on employer-based group health plans. It would repeal the ACA’s requirement that employers with more than 200 employees automatically enroll full-time employees in its group health plan.
Posted on October 28, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
On October 23, 2015, the DOL issued 13 new FAQs dealing with a number of issues about preventive services; lactation counseling; weight management counseling; colonoscopies; contraceptive services and religious accommodations; and BRCA testing.
Posted on October 26, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
On August 12, 2015, a New York Times editorial called for maintaining the so-called Cadillac Tax as a part of the ACA. Their reasoning for tweaks to the law, rather than outright repeal of the tax was based on many inaccurate assumptions.
Posted on August 12, 2015 by GARY B. KUSHNER, SPHR, CBP, PRESIDENT AND CEO
As part of the ACA, starting in January, 2016 for the 2015 calendar year, applicable large employers (ALEs, that is, employers with 50 or more full-time equivalents) are required to distribute individual 1095-B or 1095-C reports to all full-time employees, and to file all the individual reports to the IRS, covered by the applicable 1094-B or 1094-C report. Fully insured employers with fewer than 50 full-time equivalents (FTEs) must ensure that their carrier distributes the 1095-B to all full-time employees, and if self-funded, those same less-than-50-FTE employers must file the reports themselves. Previously, the penalty for failure to file was $100 per missed return, with an annual cap on the penalty of $1.5 million.
Posted on July 23, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
In a very closely watched case within the employee benefits community, the US Supreme Court issued a unanimous opinion in Tibble v. Edison International that plan fiduciaries have an ongoing duty to monitor and take action if an investment in the plan becomes imprudent. The decision, which remanded the case back to the Ninth Circuit for further review, stresses the importance of what the courts have called “procedural prudence” in administering a qualified plan such as a 401(k) or 403(b) program.
Posted on May 21, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
Only 10 percent of 480 employers surveyed by PricewaterhouseCoopers L.L.P. and Equifax Inc. indicated that they already have an in-house or outsourced solution in place to track benefits eligibility of their full-time employees and submit annual reports to the Internal Revenue Service to document their group plans’ compliance with the Affordable Care Act. The first reports are due in early 2016, but employers’ reports must contain month-by-month data for each employee.
Posted on April 28, 2015 by Gary B. Kushner, SPHR, CBP, President and CEO
The DOL has re-proposed a rule, first offered in October 2010, regarding who is an investment advice fiduciary under ERISA. That 2010 proposed rule was withdrawn in 2011 after much feedback from many corners, but in particular Congress and the investment provider community, and was re-proposed in April 2015. The re-proposed rule uses the same framework as the 2010 proposal, but differs markedly from the original.
Posted on April 22, 2015 by GARY B. KUSHNER, SPHR, CBP, PRESIDENT AND CEO
Effective in 2018, high-cost health plans will be subject to the ACA’s new “Cadillac tax.” For fully insured plans, the carrier will be responsible for paying this excise (that is, nondeductible) tax. For self-funded plans, the plan sponsor (employer) is responsible.
Posted on April 22, 2015 by GARY B. KUSHNER, SPHR, CBP, PRESIDENT AND CEO
In response to employer and employee concerns regarding wellness initiatives aimed at improving the health status of its workforce, the EEOC issued new proposed regulations on the intersection of wellness incentives and the Americans with Disabilities Act (ADA). In the new EEOC guidance, in order to comply with the ADA’s rule permitting disability-related inquiries and medical examinations by a voluntary health program (the category most wellness programs would most likely fall into), the proposed regulation has four main requirements.
Posted on April 22, 2015 by GARY B. KUSHNER, SPHR, CBP, PRESIDENT AND CEO
With tax season in full swing, often the question arises regarding who can incur qualified medical expenses for an FSA or HRA. In 2010, the qualifications were amended with the introduction of the ACA, otherwise known as Health Care Reform. Previously, qualified medical expenses could be incurred by an employee or their spouse, all eligible dependents claimed on the employee’s federal tax return, and any person the employee could have claimed as a dependent on his or her tax return unless that person filed a joint return, had a gross income in excess of $3,950, or if the employee, or spouse if filing jointly, could be claimed as a dependent on someone else’s prior year return.
Posted on March 25, 2015 by Alicia Ball, Senior Account Manager - Health & Welfare Plans
Follow along on starting at 10am EST for minute by minute coverage of the oral arguments in King v. Burwell at the Supreme Court with expert opinion from CEO and President Gary Kushner and Workforce.com
Posted on March 04, 2015 by GARY B. KUSHNER, SPHR, CBP, PRESIDENT AND CEO
The ACA (Affordable Care Act) and ADA (Americans with Disabilities Act) provide several means of promoting and expanding corporate wellness programs (see Wellness Rules), as well as ample guidance on acceptable corporate wellness program practices. By-and-large most employers seem to have been good about adhering to the spirit and letter of the guidance. The EEOC, however, seems to disagree.
Posted on December 08, 2014 by BEN COHEN, CEBS, PRACTICE LEADER, HEALTH AND WELFARE BENEFITS
The ACA overturned a decades-old Revenue Ruling that allowed employers to reimburse employees pre-tax for individual health coverage. Nevertheless, in the face of multiple pronouncements from the IRS, DOL, and HHS implementing provisions of the ACA (known collectively as the Agencies for ACA purposes), some agents and vendors still convinced unknowing employers that it was fine for them to continue or start that practice, and now even make it seem a win-win for both the employer (tax deductions, lower payroll taxes) and employee (premium tax subsidies at the Exchange, pre-tax income). Only one small catch: the ACA’s infamous general penalty section, IRC 4980D, which imposes a penalty of $36,500 per employee per year.
Posted on November 07, 2014 by Gary B. Kushner, SPHR, CBP, President and CEO
The Affordable Care Act (ACA) made a number of changes to health plans and alternative options for health coverage, but did not change or eliminate COBRA continuation rules. However, COBRA has been impacted by ACA changes in ways not previously considered.
Posted on August 08, 2014 by Jennifer Alfieri, Operations Manager
On July 22, 2014, the US Court of Appeals for the DC Circuit ruled 2-1 that premium tax subsidies were not available to health care purchasers in the 36 states that chose not to adopt a state-run health care Exchange under the ACA. Rather, according to the ruling, premium tax subsidies were not available to health care purchasers in states that had federally-facilitated exchanges. To make matters more interesting, two hours later the US Court of Appeals for the Fourth Circuit issued the exact opposite ruling on the same issue.
Posted on July 22, 2014 by Gary B. Kushner, SPHR, CBP, President and CEO
As a small part of the almost-annual Medicare “Doc Fix” that establishes reimbursement rates for providers, on April 1, 2014 Congress and the President have eliminated the maximum annual deductibles allowed for small employer group health plans (previously $2,000 individual/$4,000 family) imposed by the Affordable Care Act (ACA), effective retroactively to the initial ACA enactment (March 23, 2010).
Posted on April 03, 2014 by Ben Cohen, CEBS, Practice Leader, Health and Welfare Benefits
Medium-sized and large employers are once again receiving a reprieve from one of the key elements of the ACA, the employer mandate to provide affordable, comprehensive health benefits to full time employees or pay a penalty. On Monday, February 10, 2014, the Treasury Department announced that employers with 50 to 99 FTEs will be given until the first day of their plan year beginning on or after January 1, 2016 (an additional year) to comply with the “Play or Pay” requirements of the Act.
Posted on February 11, 2014 by Ben Cohen, CEBS, Practice Leader Health and Welfare Benefits
With the delay of the Employer Mandate in PPACA until January 1, 2015, many employers set aside their plans to track the hours of their variable hour employees. It is time to pull that back to the top of the pile as we enter 2014.
Posted on January 13, 2014 by Ben Cohen, CEBS, Practice Leader, Health and Welfare Benefits
While much of the attention surrounding the Marketplaces (formerly called Exchanges) is around individual coverage, another aspect of them was the ability for small employers with fewer than 50 full time employees to purchase group health insurance coverage through the SHOP Marketplace. The option was to be available to small employers when the Marketplaces opened on October 1, 2013 to be effective with plan years starting on or after January 1, 2014, but was ultimately delayed until sometime in November, 2013. However, on November 27, 2013, another delay was announced until November, 2014. This was of particular importance to qualifying small employers, since starting in 2014 the only way to receive the Small Employer Health Care Tax Credit was to purchase coverage through the Marketplace.
Posted on December 04, 2013 by Ben Cohen, CEBS, Practice Leader, Health and Welfare Benefits
In a newly-released FAQ, the DOL has addressed the issue of whether an employer can be fined for not providing the Exchange Notice. Under PPACA, the Exchange Notice must be automatically provided to current employees by October 1, 2013 (and then new hires thereafter). This new requirement is found in an amendment to the Fair Labor Standards Act (the FLSA). It requires all employers subject to the FLSA (which means virtually all U.S-based employers, regardless of size) to provide this notice in a timely manner.
Posted on September 23, 2013 by Ben Cohen, CEBS, Practice Leader, Health and Welfare Benefits
In this short video, The YOUTOONS Get Ready for ObamaCare, individuals can learn the basics about the changes under the Affordable Care Act.
Posted on September 05, 2013 by Cathy Fyock, CSP, SPHR, Senior HR/Business Advisor
Gary Kushner, SPHR, CBP, and CEO of Kushner & Company shares five mistakes your organization should avoid when implementing Health Care Reform in this SHRM video. If you’ve been thinking about changing the plan year, limiting the number within work groups, excluding dependents from coverage, or limiting workers to less than 30 hours per week, you must watch this short presentation.
Posted on August 20, 2013 by Cathy Fyock, CSP, SPHR, Senior HR/Business Advisor
Will “older” employees take advantage of the newfound flexibility and availability of affordable health coverage to follow their dreams? Was the availability of health coverage at their employer the primary reason they have maintained employment? Will we see an exodus of “older” employees looking to become cake decorators, shade tree mechanics, volunteers, or small business owners?
Posted on July 09, 2013 by Ben Cohen, CEBS - Practice Leader, Health and Welfare Benefits
The focus of much of the current conversation on Health Care Reform has to do with compliance with the numerous and ever-changing regulations included in PPACA. But while operational compliance is an important piece, the higher level opportunity to address health benefits as part of the broader total rewards and HR strategies can positively impact the organization for decades to come.
Posted on July 08, 2013 by Ben Cohen, CEBS - Practice Leader, Health and Welfare Benefits
It should not be surprising that some smaller employers–from all sectors of the economy–don’t know all of the complexities contained in the Act. What is surprising is that they would make business-critical decisions without getting all of the facts.
Posted on November 04, 2012 by Gary B. Kushner, SPHR, CBP - President and CEO
By a narrow 5-4 decision, the Supreme Court upholds the constitutionality of the Patient Protection and Affordable Care Act on the grounds that the individual mandate penalty is a tax, and therefore since the Constitution clearly gives Congress the ability to impose a tax all of the questions surrounding other issues on the mandate are moot.
Posted on June 28, 2012 by Gary B. Kushner, SPHR, CBP - President and CEO
As part of the Patient Protection and Affordable Care Act of 2010 (PPACA), better known as health care reform, a new form of qualified cafeteria plan was created for small employers (defined as having 100 or fewer employees) beginning in 2011. The Simple cafeteria plan enables the employer to automatically pass the otherwise-required nondiscrimination rules by following a few benefit eligibility and contribution provisions.
Posted on August 17, 2010