The deadline for employers to provide current employees with notice of health care coverage options available through the ACA Marketplace is October 1, 2013 – right around the corner.
The DOL has published model notices that employers can use to comply with the notice requirements:
§ Model Notice for employers who offer a health plan to some or all employees
§ Model Notice for employers who do not offer a health plan
On September 11, 2013, the DOL published FAQ’s confirming that there is no penalty tied to the Marketplace Notice requirement. As this particular notice requirement was done as an amendment to the FLSA (instead of as an amendment to HIPAA or ERISA), the FAQ’s should not have been a surprise or considered as a drastic change in position by the Department.
In light of the recently published FAQ’s, some are now advising employers not to publish the notices at all. While there is not a penalty tied to the notice, employers should not forget that they are still legally required. With the DOL increasing its scrutiny of welfare plans (and where such audits often consist of reviews to ensure proper plan documentation and these very type of notices are in place), it is not recommended to blatantly disregard the Marketplace Notice requirement.
Instead, the confirmation of lack of penalty should simply be referred to as a reminder to not spend too much time or analysis on this Notice requirement. In other words, just do your best to comply. In addition, many employers that are getting caught up with the particulars of how to complete part B of the model notice and having difficulty completing it are simply distributing part A of the Notice. There are various considerations to take into account if you are considering this strategy and whether it is best for your company. In that event, you may want to contact counsel for advice on the best options for your situation. Keep in mind that when employers are eventually subjected to penalty exposure in 2015, that penalty exposure will be tied to whether or not a person accesses a subsidy at the Marketplace. Whether a person can access a subsidy is dependent on the price and availability of the employer offering. All of that information is to be included on Part B of the model notice. Thus, without providing that information to an employee, the employee may very likely give inaccurate information at the Marketplace resulting in an inappropriate subsidy award, which in turn increases potential penalty exposure for the employer.
Also, remember that the Notice requirement is not over after you meet your October 1, 2013 distribution date. Employers must also provide new employees with notice of health care coverage options available through the ACA Exchange “at the time of hiring.” For 2014, the DOL will consider an employer to have given notice “at the time of hiring,” if the notice is provided within fourteen (14) days of the new employee’s start date.
For more information as the process unfolds, please join us next month for the latest details:
Affordable Care Act & Your Business
Sponsored by SmithAmundsen LLC
October 17, 8:00 – 10:00 a.m.
Stonebridge Country Club, 2705 Stonebridge Blvd., Aurora
$40 General Admission
$25 Aurora Chamber members
Register at http://tinyurl.com/HR102013
Aurora Regional Chamber of Commerce
Aurora Regional Chamber of Commerce
On May 10, 2013, President Obama declared 11 counties in Illinois as federal disaster areas. This includes Cook, DeKalb, DuPage, Fulton, Grundy, Kane, Kendall, Lake, LaSalle, McHenry, and Will counties. Additional designations may be made at a later date, as preliminary damage assessments are still being concluded in a number of counties damage in the recent flood.
As part of that declaration, grants to local residents and low-interest loans for small businesses are now available. A declaration for public assistance (local government reimbursement) has not be requested yet, but that request is to be submitted no later than May 25 to the federal government.
As outlined by Illinois Emergency Management Agency, the Individuals and Households Program (IHP) provides financial help or direct services to those who have necessary expenses and serious needs if they are unable to meet the needs through other means. Up to $31,900 is available in financial help (adjusted each year), although some forms of IHP assistance have limits. Flood insurance may be required as indicated below. These forms of help are available: Housing Assistance (including Temporary Housing, Repair, Replacement, and Semi-Permanent or Permanent Housing Construction) and Other Needs Assistance (including personal property and other items). Among the items eligible for housing assistance include temporary housing, repairs (FEMA may provide up to $31,900 for repair), replacement (rare cases), and semi-permanent or permanent housing construction (also rare and unusual cases).
Generally, more than one type of IHP assistance may be provided to the household, but only FEMA has the authority to determine which type of assistance is most appropriate for the household and the period of assistance to be covered.
There a few different ways to apply for disaster assistance. A resident may apply at www.DisasterAssistance.gov, call 1-800-621-FEMA (3362), or visit a disaster recovery center (locations to be determined shortly).
Among the items needed when applying for assistance include the address of the damaged property, names of those residing at the residence, a description of the damages, insurance information, and your SS number.
Here is this week’s newsletter to members of the Aurora Regional Chamber of Commerce. If you have Member News to include, please send to Jeanine by Wednesday the week prior to publication. For more information, contact the Chamber at (630) 256-3180.
Aurora Regional Chamber of Commerce
by Julie Proscia – SmithAmundsen
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled today that President Obama did not have the constitutional authority to make three recess appointments to the National Labor Relations Board (NLRB) last January. Specifically, the court held that President Obama did not have the power to bypass the Senate and make the recess appointments since the Senate was not technically in recess.
On January 4, 2012, President Obama appointed three members to the five-member Board while the Senate was away during a 20-day holiday recess. Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin, and NLRB counsel Terence Flynn were appointed to fill vacancies on the NLRB during the recess.
The Obama administration has repeatedly asserted that the appointments to the NLRB were proper because of the vacation recess; however, the appeals court disagreed with this characterization, and ruled that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created “pro forma” sessions.
If this decision is upheld, the Board would be left with just one validly appointed member, Chairman Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the NLRB, which has five seats, is authorized to issue decisions only when it has three or more sitting members. If this appellate court decision stands, it could invalidate hundreds of Board decisions and would effectively shut down the NLRB.
The Obama Administration is certain to appeal the court’s decision to the United States Supreme Court and this determination will impact hundreds of cases. In the meantime, every matter that the NLRB rules on is in question.…
Julie Proscia is partner in the Labor and Employment Group of the St. Charles office and represents management in labor issues. Julie can be contacted at firstname.lastname@example.org or at (630) 587-7911.
“Tax” or “Penalty” – and Why Does It Matter?:
Assessing the Constitutionality of the ACA’s Individual Mandate
On June 28, the United States Supreme Court issued its decision upholding the constitutionality of the Affordable Care Act (ACA), in National Federation of Individual Business v. Sebelius. The decision followed a long legal battle and divergent federal appellate decisions, and has been paralleled by massive public debate over the enactment of the ACA. Several key issues played a part in the Supreme Court’s decision. SmithAmundsen’s Health Care Practice Group issued an alert regarding the decision shortly after it was issued. That alert is available here. This series of three alerts will take a closer look at each of the key issues involved in the Supreme Court’s decision.
Our first alert in this series addresses the “tax” vs. “penalty” issue: whether the Supreme Court could even hear the case under the Anti-Injunction Act, and whether the individual mandate is constitutional under the Congress’s taxing power.
This decision will undoubtedly create concern and uncertainty for employers. With this in mind, members from our Labor & Employment Practice Group will offer the following educational events to help employers understand how this decision will impact their businesses.
“Health Care Reform – The Decision and Your Next Steps,” Illinois Chamber of Commerce Seminar, Monday, August 13, 2012, Chicago, IL.
“Health Care Reform Update Seminar,” Illinois Chamber of Commerce Seminar, Monday, August 27, 2012, Springfield, IL.
“Workplace and Ownership Issues, Procedures & Policies, Legal & More – An Interactive Workshop,” Illinois Chamber of Commerce’s Small Business Conference, Tuesday, September 25, 2012, Tinley Park, IL.
 National Federation of Independent Business v. Sebelius, 567 U.S., 2012.