HRB 128 - House Passes The American Health Care Act

Released May 5, 2017 I Download as a PDF

On May 4, 2017, the House passed the American Health Care Act of 2017 (“AHCA”, H. R. 1628).  Since the initial bill was officially introduced on March 20, 2017 (see The GOP Proposal to Repeal and Replace the Affordable Care Act, HRB 127, 3/10/17), there have been several amendments made to the law’s text.  The bill will now progress to the Senate for consideration; its fate in the Senate is unclear at this point.  Every indication is that the bill with undergo significant scrutiny and probably substantial change.  Following is a brief overview of certain provisions of the bill passed by the House.

Individual and employer shared responsibility provisions. While the AHCA retains the actual language of the current law as it relates to potential penalties, the employer shared responsibility “no coverage” excise tax, and the “inadequate or unaffordable” excise tax, as well as the penalty applicable to individuals who fail to maintain essential health coverage, is reduced to zero. If these provisions are preserved in the final law, they would be made retroactive to those impacted by the penalty in 2016.

For individuals, the AHCA would repeal the ACA’s premium assistance tax credit and cost-sharing available to individuals who fall below 400% of the federal poverty level, replacing it with an advanced, refundable tax credit for the purchase of state-approved, major medical health insurance and unsubsidized COBRA coverage for U. S. citizens who do not have access to employer or government-sponsored coverage, or who are otherwise exempt.  The credits are age-adjusted as follows:

The credits are capped at $14,000 annually, and are available to individuals whose income is less than $75,000 per year ($150,000 joint filers). The credit phases out by $100 for every $1,000 in income higher than those thresholds.

Market reforms.  While AHCA purports to maintain many of the market provisions of the ACA such as coverage of adult children up to age 26 and the prohibition of caps on lifetime and annual limits, it grants states the right to seek a waiver of a 10-year duration for certain purposes.  In particular, states could apply for waivers to establish their own essential health benefit package in the individual and small group market (the initial bill would have retained the ACA’s ten essential health benefits mandate), as well as set their own cost sharing limits, including out-of-pocket limits.

With regard to preexisting conditions, a state could seek a waiver that would permit health status underwriting for individuals who experience extended gaps in coverage.   Accordingly, the bill would address gaps in coverage by allowing insurers to impose a 30% premium increase for 12-months if an individual experiences more than a 63-day gap in coverage.  As an alternative, states establishing a high risk pool could engage in more aggressive underwriting for individuals who will be placed in the high risk pool.

The latest amendment to AHCA provides for an additional $8 billion in federal funds for the period between 2018 and 2023 to be allocated to states with health status underwriting waivers.

Waivers could also be sought to allow aged-based or other premium rating. Currently, the law limits the cost of the most generous plan for older individuals to three times the cost of the least generous plan for younger individuals. The AHCA would loosen the ratio to five-to-one and allows states to set their own ratio. The aged-based rating provision is creating much concern for AARP, among many other professional associations and patient advocacy groups.

Repeal of ACA provisions.  Among the ACA provisions that would be repealed include:

w  The Small Business Tax Credit, beginning in 2020;

w  Flexible medical spending account cap (currently $2,600, indexed for 2017);

w  Health insurance tax imposed on insurers;

w  Reduction of Medicare Part D retiree drug subsidy;

w  Medicare tax imposed on high earners – the unearned income and 0.9 percent tax surcharge;

w  Medical device excise tax;

w  Branded prescription drug tax;

w  For health savings accounts and other reimbursement arrangements, the tax favored status of over-the-counter medications would be returned; and

w  The 3.8% net investment tax on individuals, estates, and trusts with income above certain levels.

With regard to other ACA-imposed taxes, the AHCA further delays the imposition date of the Cadillac tax on high cost of employer-sponsored coverage until 2026.  In addition, the income threshold for the medical expense tax deduction would be returned to 5.8% of income, from 10% under the ACA.  Notably, this bill does not repeal the ACA’s Patient-Centered Outcomes Research (PCOR) fee.  The ACA’s requirement to pay the transitional reinsurance fee sunset last year in 2016.

With regard to the employer’s reporting obligation under the ACA to include the cost of health coverage on the Form W-2, the bill would create a new entry on the W-2 whereby the employer would indicate whether an individual was offered coverage.  Presumably, ultimately, this could take the place of the current IRC Section 6056 reporting obligations, i.e., the C series of the Forms 1094 and 1095.  Though again, for the moment, this obligation remains in full force and effect.

HSA Expansion.  The AHCA intends to expand Health Savings Accounts (HSA) beginning in 2018 in the following ways:

ü  Would increase the annual tax-free contribution limit to equal the limit on out-of-pocket cost sharing under qualified high deductible health plans (HDHP), subject to indexing.  For 2017, the HDHP annual out-of-pocket limit is $6,550 for individual/self-only coverage, $13,100 for family coverage.  In 2018, the HDHP out of pocket limit is indexed at $6,650 for individual/self-only and $13,300 for family;

ü  Both spouses could make catch up contributions to the same HSA;

ü  Would modify qualified medical expense definition to include over-the-counter medications; 

ü  Would reduce tax penalty for HSA withdrawals used for non-qualified expenses from 20 percent to 10 percent; and

ü  Would create a special rule for certain medical expenses incurred prior to establishing an HSA.

Changes to Medicaid.  The ACHA would roll back the Medicaid expansion framework established by the ACA.  The bill would create a per-capita Medicaid funding system and allow states to impose a work requirement for certain able-bodied individuals.

We will keep you updated as this bill progresses in the Senate.  In this interim, remember the Affordable Care Act has not been repealed, and remains in full force and effect.

About the Author: Karen R. McLeese is Vice President of Employee Benefit Regulatory Affairs for CBIZ Benefits & Insurance Services, Inc., a division of CBIZ, Inc. She serves as in-house counsel, with particular emphasis on monitoring and interpreting state and federal employee benefits law. Ms. McLeese is based in the CBIZ Kansas City office.

The information contained herein is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. The information contained herein is provided as general guidance and may be affected by changes in law or regulation. The information contained herein is not intended to replace or substitute for accounting or other professional advice. Attorneys or tax advisors must be consulted for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.