Minimum essential coverage, other health care reform guidance issued

By Sally P. Schreiber, J.D.

The IRS lists “individual mandate” exemptions not requiring a certificate from a health insurance exchange.

The IRS released a package of guidance on 2010’s health care reform legislation, finalizing proposed regulations on minimum essential coverage (T.D. 9705), identifying the hardship exemptions from the Sec. 5000A individual shared-responsibility penalty for which individuals are not required to provide exemption certificates (Notice 2014-76), and providing indexing adjustments for certain calculations under the Sec. 36B premium tax credit and Sec. 5000A (Rev. Proc. 2014-62).

Minimum essential coverage regulations. Under Sec. 5000A, starting in 2014, a taxpayer is liable for a shared-responsibility payment if the taxpayer or any nonexempt individual whom the taxpayer may claim as a dependent for a tax year does not have minimum essential health care coverage for any months in that tax year.

The regulations on minimum essential coverage finalize regulations proposed in January (REG-141036-13), with a few changes in response to comments.

The proposed regulations asked for comments about how amounts paid as part of a cafeteria plan should be considered in determining whether coverage is affordable for purposes of Sec. 5000A. In response to those comments, the final regulations provide that, for purposes of determining the affordability of coverage, the required contribution is reduced by any contributions made by an employer under a Sec. 125 cafeteria plan that (1) may not be taken as a taxable benefit; (2) may be used to pay for minimum essential coverage; and (3) may be used only to pay for medical care as defined in Sec. 213.

The proposed regulations treated health reimbursement arrangement (HRA) amounts that were made newly available in the current plan year under an HRA that was integrated with an eligible employer-sponsored plan as taken into account in determining the employee’s or related individual’s required contribution if an employee could use them to pay the employee’s share of premiums for coverage under the plan.

Although no comments on HRAs were received under these regulations, comments were received under a related provision under Sec. 36B. The final regulations clarify that, in general, HRA contributions count toward affordability of health care coverage, and not minimum value, if an employee may use the HRA contributions to pay premiums for the primary plan only or to pay cost sharing or benefits not covered by the primary plan in addition to premiums.

Under the Sec. 36B proposed regulations, HRA amounts that may be used only for cost sharing are counted for purposes of minimum value and not for affordability. Accordingly, HRA contributions that can be used only to pay for cost sharing do not count toward affordability. The Sec. 36B final regulations will provide that HRA contributions that can be used for premiums and cost sharing will only count for affordability and not minimum value. As a result, HRA contributions will not be double-counted.

The final regulations also clarified the treatment of coverage for medically needy individuals under Medicaid, i.e., individuals with high medical expenses entitling them to limited Medicaid coverage who would be eligible for full coverage but for their income level. The final regulations retain the rule in the proposed regulations that Medicaid coverage for medically needy individuals is not government-sponsored minimum essential coverage under Sec. 5000A(f)(1)(A).

Hardship exemptions. Although the rules generally require individuals to obtain certificates from health exchanges to prove they qualify under a hardship exemption from the requirement to obtain health care coverage, the final rules permit the IRS to issue guidance exempting others from the requirement to obtain a certificate. Notice 2014-76 contains the following hardship exemptions for which a certificate is not required for tax years beginning after Dec. 31, 2013, for individuals who: 

  • Qualify under 45 C.F.R. Section 155.605(g)(3) (income below a federal income tax return filing level) or (g)(5) (for unaffordable coverage);
  • Enrolled in Marketplace coverage on or before March 31, 2014;
  • Were “in line” to enroll in coverage through the Marketplace on March 31, 2013;
  • Applied for the children’s health insurance program (CHIP) during the 2014 open enrollment period and were found eligible;
  • Enrolled outside the Marketplace in minimum essential coverage that was effective on or before May 1, 2014;
  • Were eligible for services through an Indian health care provider; and
  • Who have specified household incomes and reside in a state that did not expand Medicaid.

Determining premium tax credit amounts. The IRS also issued applicable percentage tables under Sec. 36B(b)(3)(A)(i) for determining a taxpayer’s premium tax credit for 2016 (Rev. Proc. 2014-62). The revenue procedure also provides the required contribution percentage (9.66%) for plan years beginning in 2016 for determining whether an individual is eligible for affordable employer-sponsored minimum essential coverage under Sec. 36B and the required contribution percentage (8.13%) for determining under Sec. 5000A(e)(1)(A) whether an individual is eligible for an exemption from the individual shared-responsibility payment because of a lack of affordable minimum essential coverage for plan years beginning after calendar year 2015.

By Sally P. Schreiber, J.D., a JofA senior editor.

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