Colleges and other institutions of higher education within the meaning of the Higher Education Act of 1965 (schools) may continue until further notice to pay or subsidize student health insurance coverage premiums for students performing work-study or other services for the school as part of their financial aid package without fear of prosecution for violation of the group market reform requirements of the Patient Protection & Affordable Care Act (ACA), according to ACA guidance jointly published by the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Tri-Agencies) today.
Many schools have arrangements in place with insurers under which students can purchase individual policies providing health insurance coverage (“student health insurance coverage”), which are individual policies required to comply with the individual market reforms of the ACA other than as provided in the student health insurance guidance issued by HHS. See 45 CFR 147.145.
Of course, the agreement between the college and the student health insurance coverage issuer makes the coverage available for purchase by most if not all students attending the school by paying the specified premium. In some cases, however, the school might include in a student’s financial aid package a reduction to the cost of coverage of the otherwise applicable premium for student health insurance through a credit, offset, reimbursement, stipend, or similar arrangement (a premium reduction arrangement). If the student also performs services under a workstudy or other relationship, however, Tri-Agency guidance interpreting the Group Market Reforms could present a problem unless qualifies for an exemption from the Tri-Agencies’ interpretation of the Group Market Reforms as prohibited employers from paying or reimbursing individual health insurance policy premiums of employees..
The Tri-Agencies’ first announced their interpretation of the Group Market Reforms as prohibiting employer reimbursement of individual health insurance premiums in 2013. Technical Release 2013-03 announced that employers sponsoring arrangements under which the employer directly pays or reimburses premiums for employees’ individual health insurance coverage directly, or through a cafeteria plan pre-tax premium program, health flexible spending account arrangement (health FSA), health reimbursement arrangement (HRA), or other employer arrangement would incur excise taxes liability under section 4980D of the Internal Revenue Code and other penalties and liabilities for violating the ACA Group Market Reform rules. This Tri-Agency Guidance states that because by their very definition, these arrangements promise to reimburse or pay medical expenses on the employee’s behalf only up to a certain dollar amount each year, employer-sponsored arrangements that pay or reimburse employees for individual health insurance premiums generally violate the prohibition on annual dollar limits under Public Health Services (PHS) Act section 2711 and the requirement to provide certain preventive services without cost sharing under PHS Act section 2713 unless properly integrated with a group health plan that otherwise complies with ACA requirements. Furthermore, because the Tri-Agencies also construe the ACA market reforms as preventing the integration of EPPs and individual health insurance coverage, the Tri-Agencies’ guidance also states that an arrangement through which an employer reimburses or directly pays the premium for individual coverage violates the ACA market reform rules. Accordingly, unless otherwise exempted from coverage, this Tri-Agency guidance would prohibit schools from reimbursing students providing services to the school for student health insurance premiums.
Under Tri-Agency guidance published in February, 2016, the Tri-Agencies previously announced they would not that a premium reduction arrangement provided by a school to a student fails to satisfy PHS Act section 2711 or 2713 if the arrangement is offered in connection with other student health coverage (insured or self-insured) for a plan year or policy year beginning before January 1, 2017, but until October 21, 2016, did not address the post-2016 treatment of these arrangements . See Technical Release 2016-01; Notice 2016-17, Insurance Standards Bulletin, Application of the Market Reforms and Other Provisions of the Affordable Care Act to Student Health Coverage.
Under guidance jointly published October 21, 2016, however, the Tri-Agencies extended their policy of non-enforcement with respect to school student health insurance premium reimbursement arrangements beyond its previously announced December 31, 2016 expiration date. FAQs About Affordable Care Act Implementation Part 33 (“FAQ 33”) jointly published by the Tri-Agencies states that “pending further guidance, the Tri-Agencies consider it appropriate to further extend the enforcement relief provided in the February 5, 2016 guidance and will not assert that a premium reduction arrangement offered by an institution of higher education fails to satisfy PHS Act section 2711 or 2713 if the arrangement is offered in connection with student health coverage (insured or self-insured).
About The Author
Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of “Labor & Employment,”“Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Group Chair and current Defined Contribution Plans Committee Co-Chair, Groups and Substantive Committee and Membership Committee Members, past Welfare Plans Committee Chair and Co-Chair, and former Fiduciary Responsibility Vice Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current ABA International Section Life Sciences Committee Vice Chair, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, former ABA Joint Committee on Employee Benefits Council Representative and Marketing Committee Chair and a prolific author and highly popular speaker and consultant, Ms. Stamer helps management manage.
Ms. Stamer’s legal and management consulting work throughout her nearly 30-year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.
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