Open Enrollment Looms and ACA Changes are Uncertain – What are Employers to Do?

On the morning of July 28, 2017, another effort to repeal or replace the Affordable Care Act (“ACA”) failed in a 49-51 Senate vote when three Republican senators voted against the bill. Attempts to pass even a trimmed down “skinny” version of the bill were unsuccessful.  Following this dramatic vote, the path forward for health care reform is as uncertain as ever.

With fall open enrollment fast approaching, employers may be wondering what actions to take with respect to their health plans. Given the uncertainty of whether changes will be made to the ACA before open enrollment, employers may wish to proceed as though the ACA will remain in effect for 2018.

As it currently stands, ACA is still the law of the land, and employers must continue to comply with its requirements until it changes. Employers may wish to make note of the following items as they prepare for upcoming open enrollment:

New SBC Template

• Health plans are required to begin using the new Summary of Benefits and Coverage (“SBC”) template issued by the Department of Labor beginning for open enrollment periods occurring on or after April 1, 2017.  Employers may wish to confirm that their SBC is updated to satisfy this requirement.  (For more information on the SBC template, please see our August 11, 2016 blog post, “Departments Finally Publish Updated SBC Template and Instructions”).

Large Employer Penalties

• Large employers must continue to comply with the ACA’s employer shared responsibility provisions and its related reporting requirements or face paying a penalty.

Wellness Rules

• Although there have been court challenges to the final ADA and GINA wellness regulations, these regulations currently remain in full effect.

Mental Health Parity

• Recent guidance has been issued on the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”), and employers should continue to ensure their health plans comply with this law.  (For more information on the MHPAEA, please see our July 5, 2017 blog post, “Recent Mental Health Parity Guidance – A Good Reminder to Review Your Health Plan for Compliance”).

If, and when, changes are made to the ACA, employers will almost certainly be given time to react. Further, employers may decide to keep many ACA provisions, even if some or all of the ACA is repealed.  For instance, employers may decide to keep provisions such as coverage for children up to age 26, no annual and lifetime dollar limits, free preventive care, and no pre-existing condition exclusions, even if those requirements are repealed.  As another example, in the event that Code Section 4980H is repealed, some employers may return to a 40-hour a week full-time employee eligibility requirement, but some employers may decide to keep the 30-hour requirement.

Given the uncertainty, employers may wish to continue as though no changes will be made to the ACA for 2018.