What You Have to Measure, Track and Record to Comply with the ACA Reporting Requirements

By Robert S. Sheen

Robert Sheen

Robert Sheen is Founder and President of First Capitol Consulting, Inc., which advises employers nationwide on issues related to the Affordable Care Act. He is also Editor-in-Chief of The ACA Times. [1]

As we discussed in last month’s issue, it’s important for you to determine if your company is an Applicable Large Employer, or ALE, and to understand what it means if you are an ALE. In this installment of our five-part series, we’ll look at what the IRS requires you to measure, track and record in order to comply with the reporting requirements of the Affordable Care Act.

An ALE must report to the IRS in monthly snapshots for the calendar year those “full time” employees (meaning at least 30 hours of service per week) and whether they were offered healthcare coverage. This sounds doable enough, right? But, what about those employees who are hired into positions with varying hours? That is where it gets real tricky.

The IRS issued final regulations for what is called the “Look Back Measurement Method” as a means to determine whether such “variable” hour employees are full time. See Fed. Reg. Vol. 79, No. 29 (Feb. 12, 2014) (“Final Regulations”).

The term “variable hour” applies to employees for whom an Applicable Large Employer “cannot reasonably determine as to whether he/she is reasonably expected to be employed on average at least 30 hours of service per week during the initial measurement period because the employee’s hours of service are variable or otherwise uncertain.” This determination must be based on “the facts and circumstances at the employee’s start date.”[2]

Factors to consider include, but are not limited to, whether the employee is replacing a full time (“FT”) employee (i.e., 30 hours of more per week of service), comparison in actual hours to employees in comparable positions during recent measurement periods, and whether the job was advertised, communicated or documented as requiring an average of more (or less) than 30 hours per week. These factors apply to the extent that the employer has no reason to anticipate that the facts and circumstances related to this employee will be different.

For new variable hour employees who by definition have uncertain hours, the IRS provides the “Look Back Measurement Method” to determine the FT status of such employees during a future period (referred to as the stability period, or “SP”), based upon hours in a prior period (referred to as the measurement period, or “MP”.)[3] See Final Regulations.

In other words, the Method “looks back” on past hours to determine FT status for the future. The Look Back Methodology does vary depending on whether the variable hour employee is an “ongoing” employee (one who has been employed at least one standard MP) or a “new” hire (one who is still in his/her initial MP).

This Method is complicated. The measurement and tracking cannot be easily performed by hand and will likely require the use of software algorithms. To give a general understanding of the Method, we describe below at a basic level the key terms (the MP, SP, AP and WP) and how they interplay with respect to the determination of FT status of a new variable hour employee.

First, an MP is selected by the employer; this is a period of at least three but not more than 12 consecutive months. This is the period for which a variable hour employee’s hours are measured to determine whether he/she is “FT.” The months need not be in the same calendar year and can be either as full calendar months (e.g., June 1 to June 30) or a period that begins on any date following the first day of the calendar month and that ends on the immediately preceding date in the immediately following calendar month (e.g., March 15 to April 14). An employer will set a “standard” MP that applies to all “ongoing” employees.

An “initial” MP is the first MP for a new variable hour employee. The initial MP must begin on (a) the employee’s start date or (b) the later of, (i) any date up to and including the first day of the first calendar month following the employee’s start date or (ii) on the first day of the first payroll period starting on or after employee’s start date.

For example, if an employee’s start date is April 2, an initial MP must begin on either April 2, or the later of May 1 or the first day of the first payroll period after April 2. The latter allows the employer to consolidate groups of initial MPs, so that at most the employer has at most 12 different initial MPs instead of potentially 365 different initial MPs.

Once the employee has completed an entire standard MP, the employer must determine whether that employee has FT status, beginning with that standard MP, at the same time and under same conditions as ongoing employees.

Second, the stability period, or SP, is a period selected by the ALE that immediately follows, and is associated with, a standard MP or an initial MP (and, if elected, the AP associated with the standard MP or initial MP.)

In contrast to MPs, the SP must be in calendar months. It is the start of the SP whereby the variable hour FT employee must be offered healthcare coverage to avoid the Employer Shared Responsibility penalties under Section 4980H.

The rules for SPs differ depending on whether a new variable hour employee is determined to be FT or not during the initial MP. If the employee is determined to be FT during the initial MP, the SP must be at least six consecutive calendar months that is no shorter than the initial MP. Moreover, the SP must be the same length as that for ongoing employees.

If the employee is determined to be not FT during the initial MP, the SP must be no more than one month greater than the initial MP and must not exceed the remainder of the first entire standard MP plus any associated AP. The SP must begin immediately after the end of the MP plus any AP.

Third, the AP refers to an optional period, selected by an employer, of no longer than 90 days following the end of a MP and ending immediately before the start of the associated SP. The AP includes the period between the new variable hour employee’s start date and his/her initial MP.

For new variable hour employees, the initial MP and AP together cannot extend beyond the last day of the first calendar month beginning on or after the anniversary of the employee’s start date. Put another way, the initial MP and AP together cannot exceed one year plus a partial month.

There are additional rules that come into effect when a new variable hour employee experiences a change in employment during the initial MP such that, if he/she had begun employment in the new position or status, that employee would have been FT.

In general, for such an employee the employer will not be subject to Section 4980H until: (a) the first day of the fourth full calendar month following the change in employment status if the employer provides coverage at the end of that period (and the coverage meets Minimum Value and is Affordable) or (b) if earlier, and the employee is FT based on the initial MP, the first day of the first month following the end of the initial MP (including any optional AP associated with the initial MP).

Fourth, the “waiting period” (WP) is a period that the employer selects as a requirement to pass with respect to an individual before he/she is eligible for healthcare coverage. See Fed. Reg. 79, No. 36 (Feb. 24, 2014).

This ties in with the initial MP as follows: except in cases in which a WP that exceeds 90 days is imposed in addition to a MP, the time period for determining whether a new variable hour employee meets the employer’s hours of service per period eligibility condition will not be considered to be designed to avoid compliance with the 90-day waiting period limitation if coverage is made effective no later than 13 months from the employee’s start date. If the employee’s start date is not the first day of a calendar month, added to this period is the time remaining until the first day of the next calendar month.

Notably, the WP is different from an “orientation” period, which an employer may also impose provided that it is reasonable and bona fide employment-based. Once these conditions are met, the 90 day maximum for WPs applies. The “orientation period” must be a “substantive eligibility condition” such as (a) “being in an eligible job classification,” (b) achieving job-related licensure requirements specified in the plan’s terms,” or (c) “satisfying a reasonable and bona fide employment-based orientation period.”

With an understanding of these terms and their associated rules, an employer can measure, track and record for its FT employees the requisite 12 monthly snapshots for the reporting calendar year. The information will need to be distributed to the applicable employees by January 1 of the following year, and subsequently filed either end of February or end of March, depending on whether the employer will be electronically filing.

As all of the foregoing demonstrates, the measuring process is complicated, and you will likely need professional help to prepare the reports for proper employee distribution and IRS filing.

[1] This content is for general information purposes only, and should not be used as a substitute for consultation with legal advice.

[2] Note, the employer may not take into account the likelihood that the employee may terminate employment prior to the initial measurement period.

[3] The specific rules under the Look Back Measurement Method for identifying FT employees is intended only for purposes of determining liability under the Employer Shared Responsibility of IRC Section 4980H (“Section 4980H”) and not for purposes of determining status as an Applicable Large Employer.

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