Affordable Care Act

Affordable Care Act

Liebert Cassidy Whitmore (“LCW”) has attorneys well-versed in the nuances of the Affordable Care Act (“ACA”), a firm-wide “ACA Strike Team” that stays up to date on legal developments and advises all public employers on ACA compliance daily. 

For the full list of services relating to the ACA, explore the list below.

Areas in which we work

ACA Analysis

LCW conducts in-depth workforce analyses, determines the employer’s exposure to potential penalties, and recommends options to manage that exposure. LCW also writes opinions on the Applicable Large Employer determination under the Employer Mandate.

Determining Full-Time Employee Status

LCW advises employers on the proper hours of service calculations. ACA defines a full-time employee as one who averages 30 hours of service per week in any given month. LCW advises on how to calculate “hours of service” for all employees. Employers have faced difficulty determining a reasonable method for certain categories of employees, such as those who perform stipend work, temporary employees, adjunct faculty members, coaches, student workers, and on-call workers.

Adoption & Implementation of Look Back Measurement Method Safe Harbor

Many employers adopt the Look Back Measurement Method Safe Harbor in order to determine the full-time status of employees. This Safe Harbor allows the employer to average hours of service over a longer period of time (e.g. up to one year) instead of on a monthly basis. LCW documents this safe harbor through policies, operational procedures and planning documents. We advise on the appropriate periods that may be established given ACA’s strict legal restrictions relating to the timing and length of periods, the employer’s workforce, the health plans offered, and other unique considerations. We draft a plan and/or operational procedure that sets the measurement, administrative and stability periods for both ongoing and new variable hour employees. The plan also discusses how the safe harbor will operate. Specifically, we will also advise on how the safe harbor operates with regard to the special unpaid leave, employment break periods and rehire rules.

Determining Affordability

LCW conducts affordability analyses using the three affordability safe harbors: Form W-2 Safe Harbor, Rate of Pay Safe Harbor, and Federal Poverty Line Safe Harbor. We explain the benefits and drawbacks to each safe harbor and recommend the appropriate safe harbor(s) for the employer to adopt. We prepare documentation to adopt and implement these safe harbor(s). We also advise on the impacts that cash-in-lieu and flexible spending dollars have on the affordability determination.

Health Benefit Arrangements

LCW reviews health benefit arrangements, to identify potential ACA compliance issues.  Cash-in-lieu arrangement and flexible spending arrangements can contribute to affordability issues under the Employer Mandate.  LCW can identify potential problems, offer proposed solutions, and assist with necessary amendments to Section 125 Cafeteria Plans or opt out forms.

Labor Negotiations

LCW provides advice and/or labor negotiation services with respect to ACA (some components of the Act are NOT subject to meet and confer, but the wording in a policy or collective bargaining agreement can open the component up to becoming a subject of bargaining). LCW analyzes collective bargaining agreements for ACA impact and assists with drafting of proposed language.

Determining Employee Status

LCW conducts analyses, including independent contractor analyses, as to whether an employee meets the common law definition of employee for purposes of the ACA. 

Notices

LCW assists with preparation of ACA’s required notices, such as the Notice of Exchange (also known as the “Notice of New Health Insurance Marketplace Coverage Options”) and advises on the legal requirements related to an employer’s responsibility to provide the Summary of Benefits and Coverage Document and new COBRA notices.

Reporting/Payroll Modifications

ACA requires that employers who filed more than 250 Form W-2’s in the prior year report the cost of employer-sponsored health coverage on the employees’ Form W-2’s. LCW provides advice regarding the amount reported, the types of health care coverage that must be included in the amount reported, and other related issues. LCW also assists in completing the reporting forms. Large employers and employers with self-insured plans must comply with IRS reporting requirements starting in 2016 (with regard to employee data from 2015). LCW advises employers regarding these reporting requirements. Although we advise on the data that will be needed to comply with ACA reporting requirements, our scope does not include software modifications or logistical modifications to existing payroll or reporting systems. 

Developing Forms, Reports For Compliance

LCW provides advice regarding opt-out forms signed by employees who decline coverage in an effort to protect the employer from potential penalties. LCW drafts user guides to assist employers navigate through implementation of their Look Back Safe Harbor as well as their affordability safe harbor(s). LCW provides advice regarding graphic charts that may be used to track measurement periods and works with the employer to develop other forms to meet the needs of the client. LCW develops timelines for implementation based on client needs to ensure that all ACA deadlines are met. 

Deadlines For Compliance

LCW has a Special Bulletin service for all clients. When upcoming ACA deadlines approach, LCW will send out a Special Bulletin as an alert. However, we also work closely with clients to ensure that any deadlines specific to that client are met. For example, only certain ACA provisions will apply to clients with self-insured plans and client deadlines may vary depending on adopted measurement periods. We provide a chart of deadlines specifically tailored to the specific employer to ensure those deadlines are met. 

Affordable Care Act Audits

LCW attorneys conduct a comprehensive review of an employer’s workforce and offered health plans to determine potential exposure to the ACA penalties. The audit includes a thorough review and analysis of the employer’s current practices, which includes interviews with select employees with knowledge about key areas that are relevant to ACA compliance. LCW prepares a summary of findings, analysis, and recommendations where applicable. This process and areas audited may be customized depending on the employer’s needs and goals. 

Training

LCW provides comprehensive training on ACA. We will provide individualized training to the management team on the safe harbors and new operations needed by the employer to comply with ACA. We also provide an overview of ACA and how it will impact the employer. LCW will also offer training directly to employees to assist the employers with explaining how the ACA and changes to employer coverage may impact employees. 

Policies & Procedures

We advise employers on updates to policies and procedures to reflect ACA’s anti-retaliation provisions. 

Ongoing Advice

ACA is still changing. We regularly respond to ongoing client questions related to the Affordable Care Act. We expect that the Department of Treasury will issue regulations relating to ACA’s nondiscrimination provisions which prohibit an insured health plan from discriminating in favor of a highly compensated individual. We currently advise clients on the nondiscrimination rules relating to self-insured plans and will provide similar advice once this rule is expanded to fully insured health plans under ACA. We advise clients on the excepted benefit status of dental and vision plans. We also provide ongoing advice as to any ACA-related issue that may arise. 

Advice Relating to “Cadillac” Tax

In 2020 ACA will impose a 40% excise tax on plan administrators if an employee is covered under a plan that has an excess benefit. Employers will be responsible for calculating and reporting the excess benefit. LCW will advise on the employer’s obligations regarding these calculations and reporting responsibilities. 

Administrative Hearings & Litigation

Our firm has extensive experience in representing employers in administrative hearings. These skills are directly transferable to litigation matters filed under the ACA, such as discrimination and harassment claims under the ACA.

News & Knowledge

& Knowledge View All News 

Sep 19, 2017 Tips from the Table

Negotiating Modifications and Coalition Bargaining

Nine LCW Attorneys Selected to the List of 2017 Northern California Super Lawyers and Rising Stars
Jul 10, 2017 Press Release

Nine LCW Attorneys Selected to the List of 2017 Northern California Super Lawyers and Rising Stars

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Oct 5, 2017 Special Bulletins

Affordable Care Act Reporting Draws Near

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Jul 11, 2017 Blog Posts

Legislation to Watch: California Rules on Government Ethics

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May 15, 2017 Special Bulletins

The U.S. Supreme Court Lets Stand an Important FLSA Case on Cash Paid in Lieu of Health Benefits and Overtime Rates

On Monday, May 15, 2017, the U.S. Supreme Court denied the City of San Gabriel’s petition for review of Flores v. City of San Gabriel.

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Blog Posts

Employers’ Continuing Affordable Care Act Obligations Under the Trump Administration

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