Risk & Business Magazine Bowen Miclette & Britt Summer 2018 | Page 31

ASSOCIATION HEALTH PLANS However, supporters of AHPs say they support the inclusion of minimum funding requirements in AHP regulations to fortify the financial strength of AHPs. Supporters of AHPs tend to be the small-employer groups themselves, which are enthusiastic about the opportunity to purchase health insurance at a cheaper rate than small groups typically face. Alfredo Ortiz, president of Job Creators Network, says the expansion to small employers and individuals would allow AHPs to achieve the economies of scale necessary to bargain for lower premiums and better plans. As with all laws and regulations, the devil is in the details. The success of AHPs will depend in large part on the strength of the financial requirements for AHPs. If written poorly, the regulations could result in a repeat of mistakes made with MEWAs in the 1980s. But if written well, the regulations could unleash vast new buying power for small employers and even self-employed individuals, truly leveling the playing field for these entities with regard to buying health insurance. EMPLOYER MANDATE (PAY OR PLAY) The employer mandate is still in effect. This is the provision which requires employers with fifty or more employees to provide health coverage at a certain quality and at a certain price or else face a penalty tax. This requirement has not been repealed or in any way altered under the law. In fact, enforcement of this provision under the IRS is proceeding apace. Beginning last fall, the IRS started to issue letters to employers proposing tax penalties regarding plan year 2015. Employers must then respond with a payment or a defense/explanation regarding their plan offerings from 2015. The IRS has indicated it is looking to speed up its enforcement, meaning that they are attempting to issue letters regarding plan years 2016 and 2017 as quickly as they can process the information filed by employers. So, employers must continue to comply with this provision. But there are some who believe that Republicans may push to repeal this portion of the law in 2018 (effective for future years). If so, it would be welcome relief for employers, who generally find the requirement expensive and the reporting of compliance overly complex. This attempt at repeal would certainly be met with resistance by Democrats and other supporters of the ACA. And there are some who believe that even within Republican ranks, there may be some who would not support such a repeal because it would mean losing penalty/tax dollars that the IRS could otherwise collect for the federal government. Is there another option? Yes—some argue that the Executive Branch has the authority to direct the IRS not to enforce the law. In other words, without actually repealing the law, the IRS would simply declare an internal policy of not collecting that penalty tax. Employers would then technically be in violation of the ACA if they did not comply, but they could rely on the IRS policy of not enforcing that provision. This would be a surprising turn of events from the IRS, whose mission is to collect all taxes/penalties due under the law. But there is precedent for a president announcing a policy of nonenforcement with laws that the president does not approve of. For instance, President Obama announced a nonenforcement of the Defense of Marriage Act (DOMA) due to its barring of marriage between homosexuals. No one can predict whether President Trump would follow that path of directing an agency not to enforce a law. It was a highly controversial maneuver by the Obama Administration, given that the Executive Branch is generally charged with “executing” the law. But with this precedent from the last administration, it is not impossible. + SUMMARY Although the Affordable Care Act is no longer in the headlines, it is not gone. The new use of Association Health Plans has the potential to make good policies much cheaper for small employers, if regulations are well written. The employer mandate continues to challenge large employers, but there are at least two possible ways this provision could be removed or changed, even with resistance from the many ACA supporters. Employers should continue to comply with all of the ACA’s provisions, particularly because the IRS is actively pursuing penalty dollars from the past. But stay aware for possible new strategies to remove the employer mandate. 31