Massachusetts Employers Must File HIRD Form by November 30

Posted on October 30th, 2018

As part of Massachusetts’ expanded Employer Medical Assistance Contribution (EMAC) program, employers with 6 or more employees in Massachusetts must submit a health insurance responsibility disclosure (HIRD) form annually, which collects information about employer-sponsored health insurance offerings.  Employers throughout the Commonwealth have begun to receive email communication from the Department of Revenue (DOR) indicating that the HIRD form must be completed by November 30, 2018.

The HIRD reporting requirement is administered by MassHealth and the DOR through the employer’s MassTaxConnect (MTC) account.  Employers may complete the HIRD form by logging into their MTC Withholding Tax account and selecting the “File HIRD” hyperlink under the account alerts. The form will be available starting November 1 and will be used to assist MassHealth in identifying its members with access to qualifying insurance who may be eligible for the MassHealth Premium Assistance Program.  The DOR has published a 7-page FAQ available here: https://www.mass.gov/files/documents/2018/10/24/health-insurance-responsibility-disclosure-FAQ.pdf.

Under the law, employers who knowingly falsify or fail to file the form may be subject to a penalty of $1,000 – $5,000 for each violation.

Next Steps

Employers should check with their payroll provider to determine if they will assist with the filing.  While the HIRD form may be filed by either the employer or its payroll company, it’s the employer’s responsibility to ensure that the form is timely filed.

The DOR has not provided a public copy of the HIRD form at this time, although based on the law the form will be used to indicate whether the employer has offered to pay or arrange for the purchase of health insurance and information about that insurance, such as the premium cost, benefits offered, cost sharing details, eligibility criteria and other relevant information.

 

About the Authors.  This alert was prepared] by Marathas Barrow Weatherhead Lent LLP, a national law firm with recognized experts on the Affordable Care Act.  Contact Peter Marathas or Stacy Barrow at pmarathas@marbarlaw.com or sbarrow@marbarlaw.com.

 

The information provided in this alert is not, is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does it necessarily reflect the opinions of the agency, our lawyers or our clients.  This is not legal advice.  No client-lawyer relationship between you and our lawyers is or may be created by your use of this information.  Rather, the content is intended as a general overview of the subject matter covered.  This agency and Marathas Barrow Weatherhead Lent LLP are not obligated to provide updates on the information presented herein.  Those reading this alert are encouraged to seek direct counsel on legal questions.

© 2018 Marathas Barrow Weatherhead Lent LLP.  All Rights Reserved.

Alera Group Acquires Two New Firms

Posted on October 18th, 2018

Alera Group, a leading national employee benefits, property and casualty, risk management and wealth management firm, has acquired two new firms: Distinctive Insurance and GLB Insurance Group of Nevada.

Distinctive Insurance is an employee benefits consulting and insurance firm located in Southern Nevada. Distinctive creates tailored benefit solutions through thoughtful strategic planning, valuable professional services, and technology-based solutions. Since 1990, the firm has sought to function as an extension of the companies that it represents by working collaboratively with them to achieve their financial goals.

GLB Insurance Group of Nevada is a full-service insurance agency committed to creating innovative policies and providing unparalleled customer service since 1941. Located in Las Vegas, the group serves over ten different industries in the areas of commercial insurance, life and health insurance, workers compensation, personal insurance and surety bonds.

“Both of these firms bring a multi-disciplined approach to solving their clients’ unique challenges.   In addition, these firms enhance our presence in the southwestern United States,” said Alan Levitz, CEO of Alera Group. “We are excited to welcome these firms to Alera Group and look forward to their contribution as we continue to enhance the client experience.”

Alera Group was formed in early 2017 and is one of the nation’s foremost independent insurance agencies and privately-held employee benefits firms. For more information on partnering with Alera Group, visit Partnership Opportunities at www.jmjwebconsulting.com.

About Alera Group
Based in Deerfield, IL, Alera Group’s over 1,000 employees serve thousands of clients nationally in employee benefits, property and casualty, risk management and wealth management. Alera Group is the 15th largest independent insurance agency in the country. For more information, visit www.jmjwebconsulting.com or follow Alera Group on Twitter: @AleraGroupUS.

M&A Contact
Rob Lieblein, Chief Development Officer
Email: rob.lieblein@aleragroup.com
Phone: 717-329-2451

Media Contact
Jessica Tiller, Weiss PR
Email: jtiller@weisspr.com
Phone: 443-621-7690

Medical Loss Ratio Rebates

Posted on October 5th, 2018

Medical Loss Ratio Rebates Under the Affordable Care Act
The U.S. Department of Health and Human Services (“HHS”) has provided guidance on the Affordable Care Act’s (“ACA’s”) medical loss ratio (“MLR”) rule, which requires health insurers to spend a certain percentage of premium dollars on claims or activities that improve health care quality or provide a rebate to policyholders.  HHS has released amended and final regulations (the “Regulations”), which govern the distribution of rebates by issuers in group markets.  At the same time, the U.S. Department of Labor (“DOL”) issued Technical Release 2011-04 (“TR 2011-04”), which clarifies how rebates will be treated under the Employee Retirement Income Security Act of 1974 (“ERISA”).

Medical Loss Ratio Rule
The MLR rule requires health insurance companies in the group or individual market to provide an annual rebate to enrollees if the insurer’s “medical loss ratio” falls below a certain minimum level—generally, 85 percent in the large group market and 80 percent in the small group or individual market.  For these purposes, the numerator of the MLR equals the insurer’s incurred claims and expenditures for activities that improve health care quality, and the denominator equals the insurer’s premium revenue minus federal and state taxes and licensing and regulatory fees.

Defining Group Size
For purposes of the MLR rule, the Affordable Care Act defines “small” and “large” group markets by reference to insurance coverage sold to small employers or large employers. The Affordable Care Act defines a small employer as one that employs 1-100 employees and a large employer as one that employs 101 or more employees. However, states are permitted to limit the definition of a small employer to one that employs 1-50 employees.

Rebates under ERISA
TR 2011-04 clarifies that insurers must provide any rebates to the policyholder of an ERISA plan (typically, the employer).  To the extent that a rebate is owed to a group health plan governed by ERISA, any rebates paid to such plan may become “plan assets,” subjecting the policyholder and plan sponsor to special obligations concerning the treatment of the rebates.  If the rebates are plan assets, then any individual who has control over the rebates is a “fiduciary” under ERISA and must act accordingly.

To avoid ERISA’s trust requirements, rebates must be used within three months of receipt by the policyholder to provide refunds or pay premiums (for example, directing insurers to apply the rebate toward future participant premium payments or toward benefit enhancements adopted by the plan sponsor).

Treatment of Rebates to Enrollees under ERISA plans
The Regulations require insurers of group health plans to pay rebates directly to the policyholder, who will be responsible for ensuring that employees benefit from the rebates to the extent they contributed to the cost of coverage.  Rebates will most often take the form of premium reductions or other reductions in cost sharing under the plan.

To the extent employees are entitled to a share of a rebate, it is not taxable to them if provided in the form of a premium reduction or other reduction in cost sharing under the plan.  Note that if an employee’s pre-tax premium contribution is reduced one month, then his/her paycheck will be slightly higher that month.  For example, if an employee’s monthly contribution is $100, but due to a rebate it’s only $95 one month, the extra $5 remains in the employee’s paycheck and is subject to taxes and withholding.

Treatment of Rebates to Employers
In situations where a plan or its trust is the policyholder, the DOL’s position is that the rebates are generally assets of the plan.  Generally, the DOL will use “ordinary notions of property rights” as a guide.

In situations where the employer is the policyholder, the employer may, under certain circumstances, retain some or all of the rebates.  In such situations, the DOL will look to the terms of the documents governing the plan, including the insurance policy.  If these governing documents are unclear, then the DOL will take into consideration the source of funding for the insurance premium payments.  In such situations, the amount of a rebate that is not a plan asset (and that the employer may therefore retain) is generally proportional to the amount that the employer contributed to the cost of insurance coverage.  For example, if an employer and its employees each pay a fixed percentage of the cost, a percentage of the rebate equal to the percentage of participants’ cost would be attributable to participant contributions.  In the event that there are multiple benefit options, a rebate attributable to one benefit option cannot be used to benefit enrollees in another benefit option.

Allocating the Employees’ Share of the Rebate 
The portion of the rebate that is considered a plan asset must be handled according to ERISA’s general standards of fiduciary conduct.  However, as long as the employer adheres to these standards, it has some discretion when allocating the rebate.

For example, if the employer finds that the cost of distributing shares of a rebate to former participants approximates the amount of the proceeds, the employer may decide to distribute the portion of a rebate attributable to employee contributions to current participants using a “reasonable, fair, and objective” method of allocation.  Similarly, if distributing cash payments to participants is not cost-effective (for example, the payments would be de minimis amounts, or would have tax consequences for participants) the employer may apply the rebate toward future premium payments or benefit enhancements.  An employer may also “weight” the rebate so that employees who paid a larger share of the premium will receive a larger share of the rebate.

Ultimately, many employers provide the employees’ share of the rebate in the form of a premium reduction or discount to all employees participating in the plan at the time the rebate is distributed.  Employers should review all relevant facts and circumstances when determining how the rebate will be distributed.

Lastly, note that employers could potentially draft their plans to be clear that the employer retains all rebates; however, employees receive communications from the carriers that they may receive a rebate, so employers should consider the potential employee relations issues of that approach as well.

Recommendations
Employers should ensure that they have appropriate procedures in place for determining the amount of any MLR rebate issued by an insurer that would be considered “plan assets” under ERISA.  Employers may want to revisit how they have treated demutualization proceeds or other rebates for assistance as to how they should treat any MLR rebates.

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