Chaz

I can't see how the school in this scenario under any reasonable circumstances is a business associate of the clinic. The school is not performing services at all for the provider, even if is receiving reports from the clinic. In addition, I presume the school is paying the clinic to do the screening; even if not, the clinic is performing the screenings for the school and not vice versa. Without doing any research, I see two possible approaches to take: The first approach is to take the position that the school has, perhaps inadvertently, created a health plan (a covered entity) for the students. The clinic, although a provider, is not acting as such; instead it is a BA. If this approach is taken, there needs to be a BAA between the school's plan and the clinic. The second approach is that the clinic is acting in its role as a provider and is the only covered entity involved. In that case, no BAA is needed or appropriate but in order for the clinic to give any reports with PHI to the school, it would need to receive authorizations from the students (or their parents).

As an attorney, it may be self-serving for me to say, but I recommend using counsel for these documents.

Two comments: First, an employer needs to take the FTE count into account only when determining whether or not it is an applicable large employer. Second, an employer will not be subject to a 4980H penalty unless an employee obtains coverage on the exchange and gets a tax credit/subsidy. So, if the employer is careful enough to exclude only those employees who won't get a tax credit or subsidy, it should not be subject to the penalty. It's unclear to me, however, how an employer will know at all times for sure whether an employee is eligible to be claimed as a dependent.

I am really looking for thoughts as to whether this scenario is doable from a legal perspective. I presume Exec-U-Care is not accepting new business because its (dubious) business model has been eviscerated by the ACA(?)

I don't know the answer to your specific questions off the top of my head but I do know that an HSA can reimburse an otherwise qualified expense that was incurred in a prior year if the HSA was established before the expense was incurred. Check out Notice 2004-50.

Off the top of my head, I'm not sure whether the regs actually contemplate this scenario. This seems like a situation where there may be a change in cost. You'll want to check with counsel, though, because (i) even if this otherwise would permit a change under the 125 regs, you still have to go by what the plan document provides and it is unclear to me how the document is worded and (ii) there may be nondiscrimination issues in this plan design.

My bet is that they will be effective in 2015 at the earliest.

I agree with QDROphile. Based on your description, the requested election change should not be permitted.

As Bill states, there has been no guidance of which I am aware that defines what a "class " of participants. I think that you could take the approach that the ineligible 0.5 FTE employees are in a different "class" than the 0.75 FTE ones. (Even if you don't define them as "FT" and "PT" for other reasons, that is what they in effect are for medical plan eligibility purposes.) That would be an aggressive but defensible position.

The broker is incorrect. The uniform coverage rule is contained in Section 125, which is part of the Internal Revenue Code and not ERISA. Government employers are generally subject to Code Section 125 in the same way as other employers.

Leaving aside nondiscrimination testing issues, can an employer provide its CEO (and only its CEO) with a medical expense reimbursement plan that reimburses deductibles, copays, etc. under the employer's self-insured health plan? That is, will the reimbursement plan be "integrated" with the employer's health plan such that it is not subject to the ACA's restriction on annual limits even though only one individual can receive the benefit?

From my reading of the original post, it appears as if the cost of coverage is not changing, only the employee's ability to pay for it (because he or she is earning more money as a FT employee). Absent different facts, I repeat that I would hesitate in permitting an election change. If I am mistaken in my interpretation of the facts, and the cost of coverage is in fact changing, the rule leevena cites would apply.

It is a trade-off between the possible employee relations issues in requiring marriage and/or birth certificates and the possible fraud in not. I've had different clients take different approaches. Many have found that requiring the employee to certify during open enrollment as to their covered dependents' eligibility upon penalty of death (without requiring other documentation) is sufficient. This also has the benefit of being more administratively efficient.

Even if the plan permits all the election changes that the Code permits, if the employee was eligible for benefits while working part-time, I would hesitate in permitting an election change. The "change in cost" qualified event only applies if the cost charged to the employee for the benefit changes, NOT if it stays the same and just becomes more affordable to the employee. It is unclear from the original post as to the specific plan design with respect to PT and FT employees, however, so you may want to ask your counsel for more definitive advice.

For a formal legal answer, you should consult with your attorney. I can say that this plan design can be permissible depending on the circumstances. I'm a little unclear, however, on how your particular co-employment situation works, and would need more information to provide a more precise answer.

You are talking a PRA for individual policies, correct? The Q/A referenced in your link seems to have put the kibosh on these: Q2: May an HRA used to purchase coverage on the individual market be considered integrated with that individual market coverage and therefore satisfy the requirements of PHS Act section 2711?No. The Departments intend to issue guidance providing that for purposes of PHS Act section 2711, an employer-sponsored HRA cannot be integrated with individual market coverage or with an employer plan that provides coverage through individual policies and therefore will violate PHS Act section 2711.

I agree. The employer also may be subject to penalties for under withholding.

The unfunded, self-insured plan exception applies regardless of the size of the plan or whether they have to file 5500s.

Are there any employee contributions that are included in the monthly payments? Under what circumstances do participants receive checks?

I don't have time to look it up, but I believe that there is an exception from the SAR requirement for unfunded, self-insured plans (regardless of size). That makes sense because most of the SAR language concerns insurance information.

I have heard from multiple clients that they are being informed that grandfathered plans will have to comply with PPACA's no cost-sharing preventive care requirement starting 1/1/2014. I am generally confident that is NOT the case and that grandfathered plans can theoretically keep that status indefinitely and therefore need not comply with this preventive care mandate. Because I have heard this from more than a few clients, I do wonder if there is something that I am missing. Can anyone help?

The general rule is that the employee might be able to elect COBRA for the amounts in the FSA account if the employee had, as of the date of termination contributed more to his or her account than he or she was reimbursed for as of that date.

It depends on the reason why the insurer did so and/or whether the patient sign a valid authorization for the disclosure.

Briefly, to the extent that the program is set up so that employees are given X dollars to purchase individual policies on a private exchange, it probably won't work but if you are asking about the Aon, Mercer, etc. private exchange, it is my understanding that these programs are just permitting employees to choose among a number of different group policies so it might work. There are some (generally, the parties who are selling the arrangements) who say that the DOL did NOT put the kibosh on employers providing a defined contribution amount for employees to purchase individual policies, so there is some uncertainty but, in the absence of more guidance, that is certainly an aggressive approach. There is no "official" guidance that I am aware on the issue. The DOL put out a FAQ on the effect of PPACA's restrictions on annual and lifetime limits on standalone HRAs, which is the only guidance that I have seen.

The fee will likely apply to your HRA. A more pressing concern, it seems to me, is how you will be able to maintain this HRA in view of the application of PPACA's restriction on annual and lifetime limits to standalone HRAs. You should speak with counsel.