Health Insurance Marketplace notices have started to go out. The federally facilitated Health Insurance Marketplaces are informing employers that individuals in their companies have submitted applications for coverage through the Health Insurance Marketplace. The state run Marketplaces have been sending these notices out for some time. The notices state the following: an employee has been determined to be eligible for premium tax credits or cost-sharing reductions to help pay for Marketplace coverage and has enrolled in Marketplace coverage; the employer is receiving the notice because the employer may have to pay an employer shared responsibility payment to the IRS; and the employer has the right to appeal the determination.
The notices will provide information reported by the employee. For example, whether the employee was offered coverage, whether that coverage was affordable and provided minimum value, and / or whether the employee was in a waiting period and couldn’t enroll in coverage. The notice will provide detail about the employee and their eligibility for premium tax credit or cost-sharing reductions to help the employee pay for the coverage.
An employer may file an appeal to the Marketplace if the employer believes a mistake was made when determining the employee’s eligibility for assistance paying for coverage. An employer with 50 or more full-time and full-time equivalent employees is considered an Applicable Large Employer subject to the ACA’s employer shared responsibility penalties. There was transition relief for the 2015 plan year for ALEs who are between 50-99 FTE employees. In order to appeal, the employer must submit the Employer Appeal Request Form available at https://www.healthcare.gov/downloads/marketplace-employer-appeal-form.pdf or by sending a letter that includes the information requested on the form. The appeal must be submitted within 90 days of the date of the Marketplace notice. The appeal should include a copy of the Marketplace notice being appealed, the completed appeal request form (or letter) and any supporting documentation upon which the employer is relying.
The Marketplace determination of an employee’s eligibility for assistance will not determine whether the employer must pay an employer shared responsibility penalty. Only the IRS can determine if an employer owes the penalty under Code Section 4980H. The Marketplaces will report to the IRS who they feel owe an employer shared responsibility payment. The IRS has not yet started sending out penalty notices.
Please remember that the ACA does include a non-retaliation provision. ACA Section 1558 prohibits employers from discriminating or retaliating against an employee because they received assistance with paying for health insurance premiums through the Marketplace.