Update: On March 24, the Speaker of the House of Representatives withdrew the ACA repeal-and-replace bill and stated that the ACA will be left intact for the time being. Please click here for the latest update.
On March 6, 2017, House Republicans announced a bill to partially repeal and replace the Affordable Care Act (ACA). Nothing has yet been passed by Congress or signed into law by President Trump, and it’s uncertain whether the bill will ultimately be passed. The bill drafts are in their initial form and will likely go through significant debate and revision. There is still disagreement among members of Congress as to the details of the bill.
The Congressional Budget Office (CBO) released its economic analysis of the bill on March 13, adding to the debate and controversy. The CBO analysis states that the bill would reduce the deficit by $337 billion in the next 10 years due to removing premium tax credits and cuts in Medicaid. It also shows that 24 million people would lose health coverage by 2026.
House Republicans moved the bill out of both the Ways and Means committee and the Energy and Commerce committee on March 9, and it will move to the Budget Committee next.
The review and markup process is likely to take some time as disagreement has not yet been resolved among lawmakers. A simple majority vote (51 votes) is required for a bill to pass using the Budget Reconciliation process. However, some Republican senators have already publicly stated their refusal to vote for any bill that repeals Medicaid expansion. Keep in mind that the entire ACA cannot be repealed, replaced or revised through the Reconciliation process, only those provisions that involve the budget.
Impact on Employers
Employer Shared Responsibility
The current proposed bill would reduce any penalties to $0 for Applicable Large Employers (ALEs) who don’t offer adequate and affordable health insurance to full-time employees and their dependents. This reduction would take place retroactive to January 2016.
However, the bill does not address any changes to the requirement for ALEs to furnish and file Forms 1094-C and 1095-C. As the bill currently stands, ALEs would continue to be required to file these forms each year or be subject to significant penalties for filing incorrect returns, late returns, or not filing at all.
Cadillac Tax Delay
The effective date of the 40% excise tax on high-cost employer-sponsored health coverage (referred to as the “Cadillac Tax”) would be delayed from January 1, 2020, to January 1, 2025.
Elimination of Additional Medicare Taxes
Effective January 2018, the bill would repeal the additional Medicare tax that imposes an additional tax on income of $200,000 or more for individuals, $250,000 or more for joint returns, and $125,000 or more for married taxpayers filing separate returns. This would have payroll implications as employers have been required to withhold an additional 0.9% on Medicare subject wages over $200,000 to support the additional tax.
Measures Affecting Affordability and Individual Market Stability
Individual Mandate Not Repealed, but Penalty Reduced to $0
While the individual mandate would not be repealed under this proposed bill, it would reduce the mandate penalty to $0 for individuals who do not have health insurance coverage for themselves and their dependents, retroactive to January 1, 2016. The bill doesn’t address reporting requirements for individuals.
Premium Tax Credits and Subsidies Repealed
The proposed bill would eliminate premium tax credits for individuals who obtain health insurance through a federal or state health insurance marketplace (exchange) as of January 1, 2020. It would also repeal cost-sharing reductions (and payments to issuers for such reductions) for plan years beginning after December 31, 2019.
Health Insurance Tax Credit
Under the new bill, there would be an advanceable, refundable tax credit for health insurance coverage offered in the individual health insurance market or through unsubsidized COBRA. The amount of the credit ranges from $2,000 to $4,000 based on age. This amount would be reduced by 10 percent of any excess of the taxpayer’s modified adjusted gross income (MAGI) over $75,000 for individuals and $150,000 in case of a joint return. (These thresholds would be adjusted for inflation.) The maximum credit amount would be $14,000 per family with the five oldest individuals in the family counted in the calculation.
Age Rating Band
For plan years beginning on or after January 1, 2018, the Secretary of Health and Human Services, would be permitted to authorize a variance of 5 to 1 (up from 3 to 1) in premium rates charged by a health insurance issuer for coverage for adults. States would have the flexibility to establish another ratio. This would allow insurers to charge older individuals higher premiums for plans.
To encourage people to buy and keep coverage, insurers would be permitted beginning with the 2019 plan year (or 2018 for special enrollments) to charge a 30 percent penalty to people who let their insurance lapse and then try to buy a new policy.
Elimination of Other ACA Taxes
The bill addresses a list of other ACA related taxes including repealing the tax on prescription and over-the-counter medications, the health insurance tax, and the medical device tax. It would also reduce the level of medical expenses that must be incurred to claim a tax deduction from 10 percent back to the pre- ACA 7.5 percent.
Impact on Flexible Spending Accounts and Health Savings Accounts
This bill would modify or repeal many of the current restrictions on health flexible spending accounts (FSAs) and health savings accounts (HSAs), including:
- repealing the FSA contribution limit of $2,500,
- increasing the maximum tax subsidized amounts that can be contributed to HSAs to the amount of the out-of-pocket limit,
- repealing the ACA prohibition against paying for over-the-counter medications with tax subsidized funds from FSAs, HSAs, Archer medical savings accounts (MSAs), or health reimbursement arrangements (HRAs), and
- repealing the penalty for the use of HSA distribution for non-eligible expenses from 20 to 10 percent.
We will continue to track and assess this complex and lengthy legislation as it makes its way through Congress.