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The Centers for Medicare and Medicaid (CMS) and the U.S. Department of Treasury have issued a request for information (RFI) to states seeking more ideas on potential programs and waiver concepts for a State Relief and Empowerment Waiver plan.
The RFI specifically asks for ideas for additional waiver concepts that states could use that meet the requirements of the ACA’s Section 1332. CMS’s’ official notice offered four potential possibilities:
- Waiver concepts that states could potentially use alone or in combination with other waiver concepts, state proposals, or policy changes.
- Waiver concepts that could advance some or all of the principles outlined in the 1332 Guidance released in 2018.
- Waiver concepts that incorporate the entire range of waivable requirements allowed under section 1332.
- How states might combine the flexibilities available under 1332 with other flexibilities that exist under federal law, including regulatory flexibility, Section 1115 Medicaid waivers, as well as state law.
States have until July 2, 2019, to submit their ideas and methods for implementing a state relief and empowerment waiver plan which can be found here.
The RFI comes after CMS and the U.S. Department of Treasury issued guidance on state waivers in November 2018. The new State Relief and Empowerment Waivers provide states flexibility to address problems with individual insurance markets, increase coverage options for individuals, and encourage states to adopt innovative strategies to reduce future overall health care spending. Under the guidance, states have been given much more freedom and flexibility in the types of relief and empowerment waivers they can provide. The guidance provides five principles that establish waivers. They can be found below:
- Provide increased access to affordable private market coverage.
- Encourage sustainable spending growth.
- Support and empower Americans with access to affordable, high value health insurance.
- Foster state innovation.
- Support consumer-driven healthcare.
While some of the administrative aspects of the ACA continue to shift, employers should note that components of the law that haven’t changed since inception are the Employer Shared Responsibility Provisions, also known as the Employer Mandate.
Under the ACA’s Employer Mandate, Applicable Large Employers (ALEs), employers with 50 or more full-time employees and full-time equivalent employees, are required to offer Minimum Essential Coverage (MEC) to at least 95% of their full-time workforce (and their dependents) whereby such coverage meets Minimum Value (MV) and is Affordable for the employee or be subject to IRS 4980H penalties.
By the year 2026, the IRS is projected to have issued more than $228 billion in ACA penalties to employers identified as having failed to comply with the ACA’s Employer Mandate.
Employers also may receive ACA penalties for failing to file forms 1094-C and 1095-C with the IRS or furnish 1095-C forms to employees under IRC 6721/6722. These IRS penalty notices – Letter 5005-A/Form 886-A – address the failure of employers to distribute 1095-C forms to employees and to file 1094-C and 1095-C forms with the federal tax agency by required deadlines. The IRS is sending the proposed penalty assessments using Letter 5005-A and Form 886-A. These are penalties in addition to penalties for not offering the required healthcare coverage under IRC 4980H.
Employers concerned that they might be at risk for ACA penalties may want to consider undertaking a cost-free ACA Penalty Risk Assessment performed to learn about their potential exposure and strengthen their ACA compliance.
