The ACA and International Assignees
The Affordable Care Act and its related implementation and reporting requirements make 2015 particularly challenging for employers with international assignees.
Some companies are still in the process of designing a health care plan that complies with the ACA; others are evaluating programs they already offer. Wherever your plan is along that continuum, large employers — with at least 50 full-time-equivalent employees as defined by the ACA — need to bear in mind the implications of international assignees and take steps to address compliance for their globally mobile employee base.
To start, note that the hours of service by employees performed within the United States determine whether an employer meets the 50 full-time-equivalent employee threshold.
A company that passes that threshold is a large employer that must offer the required health care coverage to actual full-time employees (those who work on average 30 or more hours a week, also within the United States) and their dependents in order to satisfy the law’s mandate.
The determination of a large employer must consider the employees of all the trades and businesses under common control — including foreign entities — under the U.S. controlled group rules of Internal Revenue Code section 414 (which apply to U.S. qualified plans and certain other benefits).
A foreign company with no U.S. entities or affiliates in its controlled group can still be considered a large employer based on the number of employees providing services within the United States.
Individual Mandate for International Assignees
The individual mandate under the ACA obliges individuals to obtain their own health insurance or incur their own penalties. Failure by an individual and members of the individual’s household to have health coverage — whether provided by an employer or obtained privately — may subject the individual taxpayer to penalties.
If any employer (large or not) pays for or reimburses employees for insurance purchased individually on a health exchange or from a private insurer, this coverage may satisfy the employee’s individual mandate requirement but may force the employer to pay a different IRS penalty.
Covering the employee’s cost for such coverage on a pre-tax basis may expose the employer to penalties of $100 per day per impacted employee.
Separate from this penalty, purchases of private coverage by employees on a health exchange or otherwise are not employer-sponsored coverage that satisfies the employer mandate.
Coverage That Satisfies the Employer Mandate
Eligible employer-sponsored coverage includes group health coverage under insured and self-insured employer plans typically offered by U.S. employers.
However, when an international assignee is covered under a non-U.S. plan, or a plan designated as an expatriate plan, only certain types of coverage qualify as minimum essential coverage (MEC) mandated by the ACA, including:
• Certain self-insured group health plans;
• Certain insured expatriate health plans (with plan years ending on or before Dec. 31, 2015); and
• Certain insured plans regulated by a foreign government.
Additionally, coverage offered for all full-time employees, including international assignees, must be minimum value and affordable to comply with the requirements of the employer mandate.
Failure to meet any of the above criteria may subject employers of international assignees to the employer shared responsibility penalty if any full-time employee obtains a credit or subsidy for coverage on a health care exchange.
Minimum value generally means the employer must pay at least 60 percent of the cost of the health coverage for the employee based on actuarial values — the equivalent of the “bronze” level of coverage available on health care exchanges.
To be affordable, the employee’s portion of the premium for single coverage generally must not cost more than 9.5 percent of the employee’s household income.
Because an employer cannot determine an employee’s household income, the regulations offer three methods to determine whether the cost is affordable for an employee.
Generally, the three safe harbors provide that the employee’s portion of the premium for single coverage cannot cost more than 9.5 percent (an indexed percentage) of:
• The employee’s Form W-2, box 1 wages;
• The Federal Poverty Limit based on the annual poverty rate for a family size of one; and
• 130 hours multiplied by the employee’s rate of pay at the beginning of the year.
Whichever method an employer chooses to use must be applied uniformly and consistently among a reasonable category of employees.
Understanding the Reporting Process
Effective Jan. 1, 2015, the IRS added new reporting responsibilities under the ACA and requires employers to submit new forms in early 2016. Company IT systems need to be in place to capture this information as required.Bottom of Form
Draft versions of Form 1095-C, and the 1094-C Transmittal Form require large employers to demonstrate that the health care coverage they offer is MEC that meets the minimum value and affordability requirements.
This reporting is required of large employers, regardless of whether they offer health coverage or not, and is different than the requirement to report health care costs on employees’ Forms W-2 (which has been required since 2012).
The new forms require details of health coverage offered to each employee, including months of coverage offered, cost of coverage, whether coverage meets minimum-value rules and “affordability rules,” and whether the coverage was offered to almost all full-time employees and their dependents.
In addition, if any employer (large or not) self-insures health coverage, separate information is required on a separate part of Form 1095-C for large employers, and on Form 1095-B and the 1094-B Transmittal Form for non-large employers.
This information must include not just the employee, but all family members who are covered under the plan.
Foreign insurers and employers are also accountable for these reporting requirements; this may mean an employer identification number is required for a foreign entity (including those within a large employer’s controlled group).
Communication is Key
Organizations need to ensure that the lines of communications are open between HR, finance and IT, among other departments, to ensure that the right information is available to meet reporting requirements.
Employers should consider communicating with international assignees their obligations under the ACA, particularly if there are concerns that their foreign coverage does not meet the individual mandate and may subject the assignee to the individual penalty.
Employers may also want to consider whether the individual penalty should be part of their tax equalization policy.
Even if the foreign coverage is MEC for purposes of the individual requirement, employers need to consider whether it meets the employer shared responsibility requirements.
When evaluating or designing health care plans, organizations need to assess what systems are already in place that can be utilized for reporting purposes. Chances are large organizations are already collecting the information needed by the IRS.
As with other business challenges, globalization adds more pressure when it comes to efficient and accurate reporting.
This may mean communicating with foreign employers offering the coverage to the assignee, or foreign insurance companies if the plan is an insured plan.
Although these forms are not due until Jan. 31, 2016, they rely on data collected and compiled starting Jan. 1, 2015. If the information is not reported accurately or retained properly, even if the plan is compliant, the time spent resolving those gaps can translate into wasted resources and added expenses.
Prepare for Access Issues Now
How will the Affordable Care Act impact workers’ comp? Opinions vary, and so does the research, said Bill Wilt, president of Assured Research, at a session entitled “Healthcare Reform: Strategies You Can Apply Now,” presented at the 2014 National Workers’ Compensation and Disability Management Conference & Expo in Las Vegas.
Wilt presented the session jointly with Denise Algire, director, managed care and disability corporate risk for Safeway Inc.
According to the 2014 Workers Compensation Benchmarking Study published by Rising Medical Solutions, 73 percent of respondents said that the ACA had not yet impacted claims.
However, most believe that an impact will eventually be felt. There is significant disagreement over whether that impact will be positive or negative.
A recent RAND Corp. report suggested that higher rates of insurance take-up would result in less fraud by injured employees without health insurance and less embellishment of real claims. In addition, the report suggested that the ACA focus on creating a generally healthier population overall would positively impact workers’ comp costs across the country.
But, Wilt said, he wasn’t sold on RAND’s results. An Assured Research study of the effect of insurance enrollment on workers’ comp loss ratios showed results all over the board, with evidence of the positive correlation RAND suggested in some states, but with flat results in other states.
Curiously, there was evidence of the opposite effect in many states, with higher insurance take-up correlating to higher loss ratios.
The bottom line, though, said Algire, is that whether you think the ACA is a positive or negative thing, it has changed health care, which unarguably will affect workers’ comp. Employers need to be prepared for the fallout.
Where that will be most keenly felt, she said, will be provider shortages. “Prepare for access issues,” said Algire.
Employers’ should be prepared to cultivate partnerships with outcome-focused providers, she said. And to put an emphasis on front-loading care. That means putting the lion’s share of energy and resources into resolving claims at the primary care level, working to resolve them before they require heavy specialist care, which is where provider shortages will most dramatically impact outcomes.
From Coast to Coast
The 3,920-ton Left Coast Lifter, originally built by Fluor Construction to help build the new Bay Bridge in San Francisco, will be integral in rebuilding the Tappan Zee Bridge by 2018.
The Lifter and the Statue of Liberty
When he got the news, Scot Burford could see it as clearly as if somebody handed him an 8 by 11 color photograph.
On January 30, the Left Coast Lifter, a massive crane originally built by Fluor Construction to help build the new Bay Bridge in San Francisco, steamed past the Statue of Liberty. Excited observers, who saw the crane entering New York Harbor, dubbed it the “The Hudson River Hoister,” honoring its new role in rebuilding the Tappan Zee Bridge over the Hudson River.
Powered by two stout-hearted tug boats, the Lauren Foss and the Iver Foss, it took more than five weeks for the huge crane to complete the 6,000 mile ocean journey from San Francisco to New York via the Panama Canal.
Scot took a deep breath and reflected on all the work needed to plan every aspect of the crane’s complicated journey.
A risk engineer at Liberty International Underwriters (LIU), Burford worked with a specialized team of marine insurance and risk management professionals which included John Phillips, LIU’s Hull Product Line Leader, Sean Dollahon, an LIU Marine underwriter, and Rick Falcinelli, LIU’s Marine Risk Engineering Manager, to complete a detailed analysis of the crane’s proposed route. Based on a multitude of factors, the LIU team confirmed the safety of the route, produced clear guidelines for the tug captains that included weather restrictions, predetermined ports of refuge in the case of bad weather as well as specifying the ballast conditions and rigging of tow gear on the tugs.
Of equal importance, the deep expertise and extensive experience of the LIU team ensured that the most knowledgeable local surveyors and tugboat captains with the best safety records were selected for the project. After all, the most careful of plans will only be as effective as the people who execute them.
The tremendous size of the Left Coast Lifter presented some unique challenges in preparing for its voyage.
The original intention was to dry tow the crane by loading and securing it on a semi-submersible vessel. However, the lack of an American-flagged vessel that could accommodate the Left Coast Lifter created many logistical complexities and it was decided that the crane would be towed on its own barge.
At first, the LIU team was concerned since the barge was not intended for ocean travel and therefore lacked towing skegs and other structural components typically found on oceangoing barges.
But a detailed review of the plan with the client and contractors gave the LIU team confidence. In this instance, the sheer weight and size of the crane provided sufficient stability, and with the addition of a second tug on the barge’s stern, the LIU team, with its knowledge of barges and tugs, was confident the configuration was seaworthy and the barge would travel in a straight line. The team approved the plan and the crane began its successful voyage.
As impressive as the crane and its voyage were, it was just one piece in hundreds that needed to be underwritten and put in place for the Tappan Zee Bridge project to come off.
The rebuilding of the Tappan Zee Bridge, due to be completed in 2018, is the largest bridge construction project in the modern history of New York. The bridge is 3.1 miles long and will cost more than $3 billion to construct. The twin-span, cable-stayed bridge will be anchored to four mid-river towers.
When veteran contractors American Bridge, Fluor Corp., Granite Construction Northeast and Traylor Bros. formed a joint venture and won the contract to rebuild the Tappan Zee, one of the first things the consortium needed to do was find an insurance partner with the right coverages and technical expertise.
The Marsh broker, Ali Rizvi, Senior Vice President, working with the consortium, was well known to the LIU underwriting and engineering teams. In addition, Burford and the broker had worked on many projects in the past and had a strong relationship. These existing relationships were vital in facilitating efficient communication and data gathering, particularly given the scope and complexity of a project like the Tappan Zee.
And the scope of the project was indeed immense – more than 200 vessels, coming from all over the United States, would be moving construction equipment up the Hudson River.
An integrated team of LIU underwriters and risk engineers (including Burford, Phillips, Dollahon and Falcinelli) got to work evaluating the risk and the proper controls that the project required. Given the global scope of the project, the team’s ability to tap into their tight-knit global network of fellow LIU marine underwriters and engineers with deep industry relationships and expertise was invaluable.
In addition to the large number of vessels, the underwriting process was further complicated by many aspects of the project still being finalized.
“Because the consortium had just won this account, they were still working on contracts and contractors to finalize the deal and were unsure as to where most of the equipment and materials would be coming from,” Burford said.
Despite the massive size of the project and large number of stakeholders, LIU quickly turned around a quote involving three lines of marine coverage, Marine Liability, Project Cargo and Marine Hull & Machinery.
How could LIU produce such a complicated quote in a short period of time? It comes down to integrating risk engineers into the underwriting process, possessing deep industry experience on a global scale and having strong relationships that facilitate communication and trust.
Photo Credit: New York State Thruway Authority
When completed in 2018, the Tappan Zee will be eight lanes, with four emergency pullover lanes. Commuters sailing across it in their sedans and SUVs might appreciate the view of the Hudson, but they might never grasp the complexity of insuring three marine lines, covering the movements of hundreds of marine vessels carrying very expensive cargo.
Not to mention ferrying a 3,920-ton crane from coast to coast without a hitch.
But that’s what insurance does, in its quiet profundity.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Liberty International Underwriters. The editorial staff of Risk & Insurance had no role in its preparation.