What are the 2021 San Francisco Health Care Security Ordinance (HCSO) required health expenditure rates for employers?

The San Francisco Office of Labor Standards Enforcement recently released updated Health Care Security Ordinance (HCSO) required health expenditure rates for 2021.

Effective January 1, 2021, the rate per hour will increase:

• from $3.08 to $3.18 for all Covered Employers with 100+ workers
• from $2.05 to $2.12 for for-profit Covered Employers with 20-99 workers and for non-profit Covered Employers with 50-99 workers.

For-profit employers with fewer than 20 workers and non-profit employers with fewer than 50 workers are exempt.

More information is available on the City of San Francisco HCSO website.

If an employer secures coverage during the Special Enrollment Period, will they need to meet standard participation and contribution requirements on renewal or at some point in the future?

It depends on the insurance carrier/exchange. The Special Enrollment Period (SEP) is a once per year opportunity for small employers to enroll in medical coverage even though they do not meet carriers’ standard participation or contribution requirements. The SEP is from November 15 – December 15 for coverage starting January 1.

Covered California for Small Business (CCSB) is the only carrier/exchange of those that Claremont represents that does not require employers to meet participation or contribution requirements on their first renewal or thereafter. From a practical standpoint, if the employer chooses another carrier/exchange and does not meet those requirements by the time of their first renewal, they will likely need to switch carriers (this would have to be done during the SEP). However, with CCSB, they would not need to meet those requirements, so CCSB is the best choice if stability is important to the employer.

Can a dependent child who “ages out” of their parent’s coverage at age 26 elect COBRA to continue that coverage?

Yes. If a dependent loses coverage because they are no-longer age-eligible under a parent’s plan, the dependent has experienced a COBRA qualifying event and may elect to continue coverage under that plan through COBRA. Per the Department of Labor’s FAQ on COBRA:

“In addition to the above, the following is a qualifying event for a dependent child of a covered employee if it causes the child to lose coverage:

Loss of dependent child status under the plan rules. Under the Affordable Care Act, plans that offer coverage to children on their parents’ plan must make the coverage available until the adult child reaches the age of 26.”

Resource
U.S. Dept. of Labor: “FAQs on COBRA Continuation Health Coverage for Workers” page 3, Qualifying Events section.

Can an employer with more than 50, but less than 100 employees qualify for the Special Enrollment Period and does that exempt them from ACA penalties?

Yes and No. First, we’ll consider the Special Enrollment Period, then ACA penalties.

Special Enrollment Period
Any employer that qualifies for small group coverage can qualify for the Special Enrollment Period (SEP). Since employers with 1-100 employees qualify for small group coverage in California, an employer with more than 50, but less than 100 employees qualifies for the SEP.

The SEP was created as part of the ACA to help small employers qualify for coverage when they otherwise would not. During the SEP, all participation and contribution minimums are waived. An extreme example: an employer with 60 employees can qualify for coverage with only one enrolling employee while paying nothing towards that employee’s plan. Whether the employer and employees benefit from such an offering is a separate discussion, but an employer does qualify to offer coverage during the SEP in that scenario.

Employers wanting to secure coverage during the SEP need to apply between November 15 and December 15 for coverage effective January 1.

ACA Penalties
Is an ALE exempt from penalties if it secures coverage during the SEP?

No. An employer with more than 50 full-time and full-time equivalent employees (referred to as an Applicable Large Employer or ALE) is required to:

1. offer coverage to all full-time employees, and;
2. offer coverage of minimum value that is affordable.

It does not matter if the ALE purchased coverage during the SEP, the obligations above remain.

The danger is that in their enthusiasm to take advantage of the waived contribution requirement permitted in the SEP, the ALE may lose sight of the fact that they still have an ACA obligation to offer affordable coverage.

For example, if an ALE offers coverage secured during the SEP to its full-time employees, the ALE will satisfy the:

• “a” requirement above, and;
• “b” requirement above if that coverage is through a standard, fully-insured small group plan.

But, if the employer takes advantage of the SEP’s contribution waiver and makes no contribution or sets contribution at a low level, the coverage may not meet the ACA’s affordability standard. If an employee then secures coverage with a subsidy from the exchange, then the employer is at risk of being assessed a fine related to that employee and any other employee that does the same.

Securing coverage through the special provisions of the SEP doesn’t absolve the ALE of their large employer obligations under the ACA.

Why isn’t the employee and their dependents listed in Part III of Form 1095-C when it is provided to them each year by their employer?

Form 1095-C is the form that an Applicable Large Employer (ALE) must provide to each employee detailing what coverage the employer offered. An ALE is generally any employer with 50 or more full-time plus full-time equivalent employees.

Here is a link to Form 1095-C. Some employees ask why they and their dependents are not listed in Part III of the form when they receive it from their employer. The IRS requires the employer to list the employees and dependents only if they were offered coverage under a self-insured employer plan. Many plans offered by ALEs are fully-insured and therefore the employer need not list employee and dependents in Part III.

The IRS document: Instructions for Forms 1094-C and 1095-C, provides a full explanation (see the bottom of page 12 and top of page 13).

What is the purpose of a K-1 and when do carriers need to be provided with a K-1 during the application for coverage process?

The Schedule K-1 is an Internal Revenue Service (IRS) tax form issued annually for an investment in partnership interests or by shareholders in S corporations. The purpose of the Schedule K-1 is to report each partner’s or shareholder’s share of the entity’s earnings, losses, deductions, and credits (more detail).

Since partners in a partnership and shareholders in an S corporation are not included in the quarterly wage reports filed with the state, carriers require them to furnish a K-1 to verify that they are associated with the business so as to be eligible for benefits under a group plan.

If an employee is enrolled in medical and ancillary coverage under a family plan, do the employee’s dependents have to enroll in the same coverages?

At Claremont Insurance Services the three carriers that we represent which offer both medical and ancillary plans differ as to what they will permit as follows:

• Blue Shield of California – Does not require dependents to have the same coverage as the subscriber.
• Covered California for Small Business – Requires dependents to have the same coverage as the subscriber.
• UnitedHealthcare – Requires dependents to have the same coverage as the subscriber.

It is our understanding that a carrier’s decision in this matter is driven more by system capabilities than legal or regulatory interpretation. In other words, the carriers don’t know of any legal or regulatory reason why a dependent would be barred from choosing to enroll or waive regardless of what the subscriber decides.

What is the difference between a family plan with an embedded deductible and one with a non-embedded deductible?

When covered by a family plan with an embedded deductible, the carrier starts paying coinsurance towards a family member’s claims once that family member has met the individual deductible. The family deductible need not be met for coinsurance to start for one family member.

When covered by a family plan with a non-embedded deductible, the carrier does not start paying coinsurance for any family member until the family deductible has been met, even if an individual in the family has met the individual deductible.

In both cases, carriers begin paying coinsurance once the family deductible has been met. This means that for the plan with an embedded deductible, coinsurance payments start once the family deductible has been met even if no family member has met the individual deductible.

If all other plan characteristics are equal, an embedded deductible is more desirable than a non-embedded deductible because it allows a family member to begin receiving the benefit of coinsurance by meeting the individual deductible and by not having to meet the family deductible.

Do UnitedHealthcare’s two HSA-compatible, high-deductible health plans sold in California have different types of deductibles?

Yes. UnitedHealthcare’s bronze-level HSA-compatible plan has an embedded deductible while its silver-level HSA-compatible plan has a non-embedded deductible.

What is a Guaranteed Association and can any association offer health insurance coverage in California?

A Guaranteed Association is a nonprofit organization comprised of a group of individuals or employers who associate based solely on participation in a specified profession or industry, accepting for membership any individual or employer meeting its membership criteria. There are numerous other requirements that must be met to be considered a Guaranteed Association (see Law Insider).

To be eligible to offer group health insurance in California, an association must be a Guaranteed Association. Currently, there are five such associations in California. They are known as MEWAs (Multiple Employer Welfare Arrangements). No other associations are permitted to offer health coverage.