State and 39 schools ask court to spare them from employer mandate

Below is a news release issued from the Office of the Indiana Attorney General:

FOR IMMEDIATE RELEASE:
Thursday, October 9, 2014

State and 39 schools ask court to spare them from employer mandate
AG:  Federal court hears arguments in legal challenge to ACA tax penalties

INDIANAPOLIS – Today in U.S. District Court, attorneys for the State of Indiana and 39 school corporations argued their case in their legal challenge asking the court to strike down the “employer mandate” tax penalties of the Affordable Care Act or ACA.

U.S. District Court Judge William T. Lawrence heard oral argument from the State and schools and from the federal government defendants in the lawsuit State et al. v. IRS et al., one of several legal challenges to the ACA’s employer mandate currently pending before the nation’s federal courts.

“Before we plaintiffs accept the federal government’s claim that it can impose burdensome employer mandate penalties on state government and schools, we first must ask whether the federal law truly authorizes that – and the court is the proper place to bring that question to be answered. We appreciate the opportunity for the state and schools to present our arguments,” Indiana Attorney General Greg Zoeller said.

The Attorney General’s Office represents the state government plaintiffs in the legal challenge filed against the Internal Revenue Service last year; the 39 school corporations in Indiana who are co-plaintiffs are represented by a private law firm, Bose McKinney and Evans LLP.

The Affordable Care Act mandates that employers with 50 or more full-time workers provide employer-sponsored health insurance; if employers don’t, then they face a tax penalty if even one of their workers obtains insurance with tax credits using the new healthcare purchasing exchanges.  Under the ACA, the IRS tax penalty employers face for noncompliance is equal to $2,000 per employee for every employee in the organization, even if only one worker were misclassified for benefits and obtained insurance with tax credits through the exchanges.

In their lawsuit, the State and schools contend that under the 10th Amendment, the federal government cannot impose such employer penalties on state and local government employers which are separate levels of government; such penalties would be an unconstitutional tax.  Moreover, the plaintiffs contends the IRS is interpreting the Affordable Care Act incorrectly, and that the wording of the ACA that Congress passed allows the IRS to impose tax penalties only in those states where healthcare purchasing exchanges are operated by the state government, and not elsewhere.

Sixteen states and the District of Columbia operate state-run exchanges and eight states have joint federal-and-state-run hybrid exchanges. Indiana is one of 26 states that opted not to establish its own state-operated insurance purchasing exchange, meaning the federal government operates an exchange for Indiana residents.  The plaintiffs’ lawsuit contends the plain wording of the ACA statute is clear:  That without a state-operated exchange, Indiana therefore is exempt from the employer mandate tax penalties of the ACA, the IRS cannot penalize the state government or school corporations and the IRS’s broad interpretation of the ACA – applying the mandate to all states – exceeds its authority and violates the Administrative Procedures Act.

Zoeller noted the employer mandate penalties are not merely a nuisance or inconvenience.  Many schools rely upon part-time employees such as bus drivers, cafeteria workers and coaches who would not qualify for full-time employee insurance, but a single mistake in health benefits classification could trigger Draconian tax fines for a small public school corporation.  For state government itself, with 28,000 executive branch workers, a similar error in misclassifying just one full-time employee for benefits as part-time could potentially trigger $56 million in IRS tax penalties, if the IRS’s interpretation of the ACA were implemented.  In light of the risk to their resources, the plaintiffs urge the U.S. District Court to declare the employer mandate does not apply in exempt jurisdictions such as Indiana where purchasing exchanges aren’t state-operated.

At today’s oral argument, Indiana Solicitor General Thomas M. Fisher argued for the state government and attorney Andrew McNeil argued for the 39 school co-plaintiffs.  Neither the state’s nor schools’ attorneys represent private employers or private individuals in this lawsuit. The IRS and other federal defendants were represented by attorneys from the U.S. Department of Justice.  Judge Lawrence took the arguments under advisement and will rule on motions for summary judgment at a later date.

The State et al. v. IRS et al. case is one of several legal challenges questioning whether the IRS correctly interprets the ACA as passed by Congress.  On September 30, a separate federal district court in Oklahoma considering a similar case struck down the insurance tax credits in that state, on the grounds that the ACA did not authorize them in a state without a state-run exchange.  An appeal of that case is expected.  A similar ruling in July by a three-judge federal appeals panel in Washington D.C. awaits review by the full appeals court.  Yet another federal appeals court in Virginia allowed subsidies via federal exchanges, and that case has been appealed to the U.S. Supreme Court.

NOTE:  More information about the State et al. v. IRS et al. lawsuit is at this link.  http://bit.ly/Tng93D  
Additional details are at this link: http://bit.ly/1gJDVRw

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MEDIA CONTACT:
Bryan Corbin
Public Information Officer
Office of the Indiana Attorney General
317.233.3970
Bryan.Corbin@atg.in.gov

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The IRS Acknowledges Reality

On September 18, 2014, the IRS issued a technical notice related to election changes under cafeteria plans. IRS Notice 2014-55 specifically permits a cafeteria plan to allow an employee to revoke his or her election under a cafeteria plan for coverage under the employer’s group health plan if the employee’s hours of service are reduced to less than 30 hours per week. Prior to this notice, it would not have been permissible for a cafeteria plan to permit revocation of a cafeteria plan election under these circumstances. This notice is significant because: (a) the IRS is formally acknowledging that employee hours are being cut under 30 to avoid ACA shared responsibility penalties; and (b) the cuts are so significant that the IRS feels it is necessary to issue a formal notice on the topic.

Following is a link to the notice:  Notice 2014-15

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“Piling On”: IRS Issues Instructions on ACA Reporting Requirements

On August 28, 2014, the IRS issued draft instructions on the reporting requirements for employers subject to the employer shared responsibility provisions. The draft instructions for Forms 1094-C and 1095-C are thirteen pages in length, filled with mind-numbing complexity that will cause fits for all large employers.

Employers with at least fifty full-time employees (including full-time equivalent employees) will be required to utilize IRS Forms 1094-C and 1095-C to report information to the IRS regarding offers and enrollment in health coverage. Form 1094-C must be used to report to the IRS summary information for each employer and to transmit Forms 1095-C to the IRS. Form 1095-C is used to report information about each employee.

The Form 1094-C requires an employer to certify the eligibility of full-time employees for health coverage. The instructions describe the various types of transition relief that are available to applicable large employers for 2015.   This form must be filed by the employer under penalties of perjury.

The Form 1095-C requires large employers to provide the name, address, social security number, months of coverage and the employee’s share of the lowest cost monthly premium for health coverage.

Large employers are required to file Forms 1094-C and 1095-C by February 28 following the calendar year if the employer is filing paper copies. If the employer files electronically, the forms are due by March 31. In general, employers that are filing 250 or more Forms 1095-C during the calendar year must file the returns electronically. The first returns will be due in 2016; however, the IRS is permitting employers to file voluntarily in 2015. I am not quite sure why any employer would voluntarily file in 2015.

In addition, large employers will be required to provide each full-time employee with Form 1095-C. The employer generally must mail the statement to the employee’s last known permanent address. It is also permissible to furnish the statement electronically if the employer obtains affirmative consent from the employee.

The IRS will not impose penalties under Internal Revenue Code §§ 6721 and 6722 for 2015 returns and statements filed and furnished in 2016 on employers that can show that they have made good faith efforts to comply with the information reporting requirements. This reprieve may represent the only real piece of good news that came from this most recent IRS publication.

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Indiana School Leaders and Job Creators Describe Harmful Effects of Health Care Law

Below is an announcement issued by Education & The Workforce Press:

 

FOR IMMEDIATE RELEASE
September 5, 2014
CONTACT: Press Office
(202) 226-9440

 

Indiana School Leaders and Job Creators Describe Harmful Effects of President’s Health Care Law

 

WASHINGTON, D.C. – The Subcommittee on Health, Employment, Labor, and Pensions, chaired by Rep. Phil Roe (R-TN), held a field hearing in Greenfield, Indiana to examine the health care challenges facing the state’s classrooms and workplaces. According to a local news report:Hoosier business owners and education officials aired out their concerns about the Affordable Care Act to Congress without having to go all the way to Washington D.C. … The chambers there are clearly smaller than the halls of Congress, but that’s exactly the way committee members wanted it. Several panelists were concerned about how ACA has been affecting their budgets.As witnesses made clear, the president’s health care law is undermining the success of the nation’s schools and workplaces –Schools

  • The most significant impact is on our special needs students. These students need and want consistency … It is best for our special needs students to have the same bus driver for their routes. Unfortunately, we now must split the route between two drivers. By using different drivers for the same route, our special needs students are subject to constant change which is uncomfortable for our special needs students and not in their best interests. – Mr. Danny Tanoos, Superintendent, Vigo County School Corporation, Terre Haute, IN
  • Like many community colleges our funding is very limited. It does not allow us to absorb large unfunded mandates such as any employee who reaches 30 hours being offered health insurance. We would have to pass along such increases on the backs of students by increasing tuition. As a result many of those who are at the lowest income levels trying to improve their lives would no longer be able to afford college. – Mr. Tom Snyder, President, Ivy Tech Community College of Indiana, Indianapolis, IN
  • The Patient Protection and Affordable Health Care Act (PPACA) has had and continues to have a severe and disproportionately disruptive effect on our high performing school district. We have identified three categories in which these negative effects have occurred in our school district. There is the impact on our students, the impact on our employees, and the impact on the school district itself. These intertwined and interactive effects, taken together, are serious now and appear to be increasing in their severity over time. – Mr. Michael Shafer, Chief Financial Officer, Zionsville Community Schools, Zionsville, IN

Workplaces

  • In summary, since the ACA took effect, our company and employees have seen premiums increase dramatically while deductibles and out-of-pocket costs have been raised, all during a period when the overall health of our employees has improved … From the experience of IDS, I can say that the Affordable Care Act is anything but affordable for our company and employees. – Mr. Mark DeFabis, President, Integrated Distribution Services, Plainfield, IN
  • We offer health insurance to our full time employees although not affordable by government standards … This cost to our business is roughly in the area of $2.42 to $3.23 per hour per employee depending on hours worked. To meet the proposed guidance of not to exceed 9.5% of income that cost would move into the $2.87 to $5.15 range per hour per employee! Representing an 18 to 59% raise in cost per hour per employee. Where is the AFFORDABLE in this act? – Mr. Daniel Wolfe, President, Wolfe’s Auto Auctions, Terre Haute, IN
  • The Affordable Care Act’s reporting mandates will absolutely ‘bury’ our Human Resources Department … The forms must be filed electronically for companies with over 250 employees, such as Draper. However, there is no guidance or process yet established to explain how to do this … Our HR Department’s worst fear is that the final versions will be made available on December 15, with a December 31 deadline for submission! – Mr. Nate LaMar, International Regional Manager, Draper, Inc., Spiceland, IN

Congressman Luke Messer (R-IN) noted during the hearing, “Our nation’s school children and hourly workers shouldn’t be forced to pay the price of that law.” Chairman Roe echoed the sentiment: “Our children and working families deserve better.”

To read witness testimony, opening statements, or watch an archived webcast of the hearing, visit www.edworkforce.house.gov/hearings.

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EEOC Files Lawsuit Against Employee Wellness Program

On August 20, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed suit in Wisconsin federal court challenging an employee wellness program’s legality under the Americans with Disability Act (“ADA”). As noted in a press release, this lawsuit is the EEOC’s first to directly challenge a wellness program under the ADA.

Orion Energy Systems (“Orion”) implemented a wellness program that included health screenings and disability related inquiries. The ADA prohibits medical examinations and inquires unrelated to employment, unless they are voluntary. The EEOC alleges that Orion’s wellness program did not qualify as voluntary under the ADA because one employee who refused to participate was forced to bear the entire cost of her health coverage premium and was ultimately terminated. “Employers certainly may have voluntary wellness programs,” stated John Hendrickson, regional attorney for the EEOC Chicago district. “But they have to actually be voluntary. They can’t compel participation by imposing enormous penalties such as shifting 100 percent of the premium cost for health benefits on the back of the employee or by just firing the employee who chooses not to participate. Having to choose between responding to medical exams and inquiries – which are not job-related – in a wellness program, on the one hand, or being fired, on the other hand, is not choice at all.”

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Roe to Hold Indiana Field Hearing on Health Care Challenges Facing Schools and Workplaces

Below is an announcement issued by the Subcommittee on Health, Employment, Labor, and Pensions:

On Thursday, September 4, at 10:00 a.m., Subcommittee on Health, Employment, Labor, and Pensions Chairman Phil Roe (R-TN) will hold a field hearing entitled, “The Effects of the President’s Health Care Law on Indiana’s Classrooms and Workplaces.” The hearing will take place at Greenfield City Hall, 10 South State Street, Greenfield, Indiana.

Across the country, workers and employers are struggling with the consequences of the president’s health care law. For example, in response to a survey by the Federal Reserve Bank of New York, businesses generally expect health care costs to increase by 10 percent next year and a majority cited the health care law as the reason. The survey also revealed the law was leading employers to raise the number of part-time employees, lower employee compensation, and increase consumer prices.

The House Education and the Workforce Committee is examining how many of these same consequences are affecting the nation’s K-12 and higher education systems. Through testimony and the committee’s YourStory initiative, school leaders have shared stories of health care costs going up and staff work-hours being cut.

The field hearing will provide members an opportunity to learn how the health care law is affecting Indiana’s schools and workplaces. For more information about the field hearing, visit www.edworkforce.house.gov/hearings. Media interested in attending the field hearing must RSVP to Liz Hill at liz.hill@mail.house.gov.

 

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IRS Releases Draft Versions of Forms for Health Information Reporting by Employers

The IRS released final regulations on March 5, 2014, outlining the employer reporting requirements that will take effect for the 2015 taxable year. While the final regulations specified the type of information that will need to be reported, the actual reporting forms were not issued at that time. As a result many employers were taking a wait and see approach to the reporting requirements. We now have draft reporting forms. On July 24, 2014, the IRS released draft forms that employers will use to report on health coverage they offer to their employees. The forms are the primary mechanism used by the government to track and enforce the Affordable Care Act’s minimum essential coverage and shared responsibility requirements for employers. The first reports will be due in 2016.

There are two types of reporting requirements. First, is section 6055 reporting, which is to aid the IRS in enforcing the ACA individual mandate. The second type of reporting is section 6056 reporting, which applies to applicable large employers and is to aid in the enforcement of the shared responsibility penalties under the ACA. The IRS recently released draft forms may be found using the following hyperlinks: 1094-B (Transmittal of Health Coverage Information Return), 1094-C (Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns), 1095-B (Health Coverage), and 1095-C (Employer-Provided Health Insurance Offer and Coverage). The draft instructions relating to the forms have not been released. The IRS anticipates posting draft instructions to IRS.gov sometime in August.

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