Articles Discussing Health Care Reform.

Since its enactment in 2010, Republicans in Congress have made numerous attempts to repeal the Affordable Care Act (“ACA”), with little success beyond modest tweaks that garnered bipartisan support (such as delaying the “Cadillac Tax”). With Republicans in control of both houses of Congress and the White House, comprehensive changes are a given, though the substance and timing of the changes remain open questions.

Executive Summary: On Friday January 20, 2017, President Trump signed an executive order titled “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal.” The Order directs the Secretary of Health and Human Services (HHS) and the heads of all other executive departments and agencies (e.g., Treasury, DOL, Health and Human Services, etc.) to take all actions consistent with law to waive, defer, or delay the implementation of any provision or requirement of the Affordable Care Act (ACA) that would impose a financial (fee, tax, penalty) or regulatory burden on states, individuals, families, healthcare providers, and/or health insurers. The order also encouraged the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance.

In one of his first actions in office, President Donald Trump signed an Executive Order to “Minimize the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal.” In a few short paragraphs, President Trump has given a very broad directive to federal agency heads, including the Department of Health and Human Services, to take steps to grant waivers, exemptions, and delay provisions of the ACA that impose costs on states or individuals.

One of the first acts of the new Administration on Inauguration Day was to issue a memorandum putting the brakes—at least temporarily—on federal regulations that have not yet taken effect, and to release an executive order authorizing agencies and departments to “minimize the unwarranted economic and regulatory burdens” of the Affordable Care Act. These two actions are the first of several presidential orders and memoranda expected in the days and weeks to come.

The Obama Administration was dealt a blow in its efforts to expand legal protections for transgender individuals relating to the receipt of health care services and health insurance under the Patient Protection and Affordable Care Act (“ACA”). Judge Reed O’Connor of the Northern District of Texas has issued a nationwide preliminary injunction that enjoins the U.S. Department of Health and Human Services (“HHS”) from enforcing protections that prohibit discrimination on the basis of gender identity or termination of pregnancy.

Earlier this year the U.S. Department of Health and Human Services (“HHS”) finalized regulations that implement Section 1557 of the Affordable Care Act (“Section 1557”). You can read our prior discussions of these regulations in our blog post and newsletter article.

In Notice 2015-87, the IRS addressed the impact of employer opt-out payments — payments made to employees who decline enrollment in an employer’s group health plan — on affordability for ACA purposes. Employers who do not offer group health coverage that is affordable as defined under the ACA risk significant penalties. For 2016, group health coverage is considered affordable if the employee’s cost for the least expensive self-only coverage under the plan does not exceed 9.66% of the employee’s annual household income. For 2017, the percentage increases to 9.69%.

The ACA requires “applicable large employers” (those with 50 or more employees) to offer health coverage meeting affordability and other standards to their full-time employees. Failing to offer minimum essential coverage to at least 95% of full-time employees, or offering coverage that is not “affordable,” may result in significant penalties if a full-time employee receives a federal premium tax credit to purchase coverage through an ACA exchange. A full-time employee is one who works on average 30 or more hours per week or 130 or more hours per month. The hours of part-time employees are converted to full-time equivalents to determine whether a business is an applicable large employer, but only full-time employees must receive offers of complying coverage.

Section 1557 of the Affordable Care Act (“ACA”), in effect since 2010, prohibits discrimination in any federally funded health program on the basis of race, national origin, sex, age, or disability. The Department of Health and Human Services (“HHS”), through the Office of Civil Rights, has been enforcing the provision since it was enacted in 2010. HHS has now issued the Final Rule, “Nondiscrimination in Health Programs and Activities,” providing guidance to covered entities affected by the civil rights provision. The Final Rule requires certain covered entities to include specific nondiscrimination protections in their benefit plan design by the first day of the first plan year, beginning on or after January 1, 2017.

The U.S. Department of Health and Human Services (HHS) recently published its Final Rule1 implementing Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of, among other grounds, sex in certain health programs and activities. According to HHS’s press release, the Final Rule and Section 1557 outline individuals’ rights, as well as the responsibilities of health insurers, hospitals, and health plans administered by or receiving federal funds, in order to advance protections for underserved, underinsured, and often excluded populations.

Colleges and universities historically have provided graduate student employees (e.g., teaching assistants) with a stipend or reimbursement to help defray (or even fully cover) the cost of their medical coverage under the student health plan. Competing guidance from the Departments of Health and Human Services (“HHS”), Labor (“DOL”), and the Treasury (collectively, the “Departments”) under the Affordable Care Act (“ACA”) will soon make such arrangements problematic.

The U.S. Supreme Court has unanimously remanded a consolidated appeal of seven cases addressing the contraceptive-coverage “accommodation” for religious organizations under the Affordable Care Act (ACA) to the Courts of Appeals. Zubik v. Burwell, No. 14-1418 (May 16, 2016).

The Supreme Court in a unanimous opinion remanded Zubick v. Burwell — and the six cases consolidated with Zubick — back to the Courts of Appeals to rule on the contraceptive opt-out notice provisions. The Court directed the lower courts to consider the new information presented in the parties’ post-oral argument briefs ordered by the Court on March 29. The petitioners in each of these cases are religiously-affiliated nonprofit organizations which are challenging the requirement that notice be given to the government of religious objections to providing no-cost contraceptive coverage under employee health insurance plans, as required by the Affordable Care Act (“ACA”) and its regulations.

On May 12, 2016, the United States District Court for the District of Columbia issued an opinion in U.S. House of Representatives v. Burwell et al., No. 14-1967 (D.D.C. May 12, 2016), enjoining the federal government’s use of unappropriated monies to fund reimbursements to health insurers under Section 1402 of the Patient Protection and Affordable Care Act (the “ACA”). Section 1402 of the ACA provides cost-sharing reductions (e.g., reductions in deductibles, coinsurance and copayments) to certain people who obtain health insurance through the government exchanges. Section 1402 also provides that the insurer is supposed to be reimbursed by the government for the cost-sharing reductions it gave to those people.

As companies complete their Section 6055 and 6056 reporting under the Affordable Care Act (ACA), now it’s time to be on the lookout for notices regarding ACA penalties.