guidance issued by DOL and Treasury and IRS.
4
Subsequent guidance reiterated and clarified
the application of the market reforms to employer payment plans.
5
The guidance set out below
provides a transition period for the application of certain market reforms to certain arrangements
offered by an institution of higher education to its students that are designed to reduce the cost of
student health coverage (whether insured or self-insured) through a credit, offset, reimbursement,
stipend, or similar arrangement (a premium reduction arrangement).
The Departments continue to work together to develop coordinated regulations and other
administrative guidance to assist stakeholders with implementation of the Affordable Care Act.
The guidance in this Bulletin is being issued in substantially identical form by DOL and
Treasury in separate guidance.
II. Background
Under Technical Release 2013-03 (the 2013 guidance), an employer payment plan (EPP) is a
group health plan under which an employer reimburses an employee for some or all of the
premium expenses incurred for an individual market health insurance policy or directly pays a
premium for an individual market health insurance policy covering the employee. EPPs and
health reimbursement arrangements (HRAs) typically consist of a promise by an employer to
reimburse medical expenses up to a certain amount. The 2013 guidance clarifies that such
arrangements are subject to the group market reform provisions of the Affordable Care Act,
including the prohibition on annual dollar limits under PHS Act section 2711 and the
requirement to provide certain preventive services without cost sharing under PHS Act section
2713. That guidance generally provides that EPPs and HRAs will fail to comply with these
group market reform requirements because these arrangements, by their very definition, include
dollar limits on the amount of reimbursements or payments, and therefore violate the Affordable
Care Act prohibition on annual dollar limits and the requirement to provide coverage of certain
recommended preventive services without imposing any cost-sharing requirements.
The 2013 guidance further clarified that such employer health care arrangements will not violate
the market reform provisions when integrated with a group health plan that otherwise complies
with those provisions. Importantly, however, the 2013 guidance provided that these employer
health care arrangements cannot be integrated with individual market policies to satisfy the
market reforms. Consequently, such an arrangement may be subject to penalties, including
excise taxes under section 4980D of the Code.
4
See Insurance Standards Bulletin, Application of Affordable Care Act Provisions to Certain Healthcare
Arrangements, September 16, 2013, available at
https://www.cms.gov/CCIIO/Resources/Regulations-and-
Guidance/Downloads/cms-hra-notice-9-16-2013.pdf.
5
There have been several prior issuances on the topics addressed in this notice: (1) FAQs About Affordable Care
Act Implementation (Part XI), issued on January 24, 2013 by DOL (http://www.dol.gov/ebsa/faqs/faq-aca11.html
)
and HHS (http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs11.html); (2) IRS
Notice 2013-54 and DOL Technical Release 2013-03, issued on September 13, 2013; (3) IRS FAQ on Employer
Healthcare Arrangements (
http://www.irs.gov/Affordable-Care-Act/Employer-Health-Care-Arrangements).
(4) FAQs About Affordable Care Act Implementation (Part XXII), issued on November 6, 2014 by DOL
(
http://www.dol.gov/ebsa/faqs/faq-aca22.html) and HHS (http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-
FAQs/Downloads/FAQs-Part-XXII-FINAL.pdf); Notice 2015-17, 2015-14 I.R.B. 845, issued by Treasury and IRS
on February 18, 2015, and Notice 2015-87, 2015-52 I.R.B. 889, Q&A-1 to Q&A-6, issued by Treasury and IRS on
December 16, 2015.
2