Employers Lobby to Weaken Insurance Mandate

Wednesday, July 13, 2011

Employers Lobby to Weaken Insurance Mandate

In Implementing Law, Much Will Ride on the Details; Who Qualifies as a 'Full-Time' Worker?

By:  Janet Adamy, Wall Street Journal

It is three years before most of the new health-care law kicks in, but already some of America's largest employers are peppering the Internal Revenue Service with concerns that making the changes will be far more complex than they anticipated.

At issue is one of the law's central requirements: employers with 50 or more full-time workers must offer affordable insurance or pay a penalty. It sounds simple enough. But in crafting the rules, the IRS and two other federal agencies are now tackling basic yet messy questions, such as who counts as a full-time worker and how do companies measure whether insurance is "affordable."

In one of more than 200 submissions made recently to the IRS, Wal-Mart Stores Inc., Gap Inc., United Parcel Service Inc., Hilton Worldwide Inc. and others have pushed for a lengthy grace period that could stave off penalties for a year or more after certain workers are hired. The result could undermine some of the law's intent to insure those who can't afford coverage. Large employers also have met with White House officials to press their case.

Retailers, restaurants and other companies that rely on seasonal, temporary and other workers with flexible schedules, say it's hard to figure out who is a full-time worker. That could cause the employer to enroll and drop them from coverage, potentially churning them through new state-run insurance exchanges or the Medicaid federal-state program for the poor, as their hours fluctuated.

Moreover, companies are worried about another standard that requires they offer care that is "affordable," or roughly 9.5% of an employee's household income. The employers say they can't calculate that without asking employees how much their spouses or dependents earn-a potential privacy violation that may not be verifiable, either.

"The uncertainty of the regulatory process and the many rules that are yet to be clarified and fully defined are worrisome for our members," the National Restaurant Association, the industry's main lobbying group, wrote in a letter to the IRS last month.

Mark Iwry, a deputy assistant secretary for retirement and health policy at the Treasury Department, said the agency is "encouraged that stakeholders have responded favorably" to its informal, early idea for full-time employees. The Obama administration says the agencies are working quickly to give employers guidance, and is weighing how to handle the affordability measurement.

The debate centers on how federal agencies define a full-time worker. The law itself, signed by President Barack Obama in March 2010, defines a full-time employee as one who works at least 30 hours per week on average in a given month.

Once classified as a full-time worker, the employer is obligated to provide affordable health care or pay a penalty of $2,000 per worker, excluding the first 30 workers.

In meetings with White House officials starting last year, numerous employers argued that a one-month average isn't long enough to determine whether a worker is a true full-timer. Census Bureau data shows that six million, or 5.6% of private-sector employees, work variable hours.

In response, the IRS in May floated the idea of giving employers a "look-back" period of between three and 12 months to determine whether certain workers met the full-time definition. Only then, if the employee hit the target, would the employer have to start providing insurance or pay the penalty.

Steakhouse chain Texas Roadhouse Inc. predicts that a look-back period would significantly ease its insurance costs. Waiting to enroll workers for a year or more will cut in half the number of additional workers it will have to insure in 2014, said Mark Simpson, a senior director at the chain. Turnover inside its restaurants averages 100% per year, meaning most new hires would be gone before they qualified.

Mr. Simpson said each restaurant worker generates about $2,000 in profit for the company a year. That's equal to the penalty the chain would pay per worker if it didn't cover the 3,200 additional workers it estimates could fall under the full-time definition by 2014 if the look-back is employed. He said the firm needs the grace period to make sure it is providing insurance to true full-time workers, not just those who hit the criteria for a brief period.

Supporters of the law say the proposed look-back period is an attempt by employers to cover fewer workers. They point to a provision in the law that says group health plans and other insurance providers can't apply waiting periods exceeding 90 days.

A long waiting period "could restrict workers' access to comprehensive and affordable coverage in a manner inconsistent with Congress's intent," said Sen. Tom Harkin (D., Iowa), chairman of the Senate health committee.

Meanwhile, employers cheered the idea and are pressing the IRS to go further. An umbrella group called Employers for Flexibility in Health Care, which represents at least four dozen big employers and trade groups, last month asked the IRS to ensure that all part-time, temporary and seasonal hires wait up to 12 months, plus an additional 90-day waiting period, before they qualify for insurance.

Not having a sufficient waiting period, including for new part-time, temporary and seasonal workers, "may lead to employers dropping the coverage because these employees will be eligible for subsidized coverage" through insurance exchanges run by states, the group said in a letter, signed by Wal-Mart, Gap, UPS, Hilton and others. "The ultimate result would be increased costs for the federal government."

A senior administration official said the IRS floated the waiting period to prevent workers from dropping in and out of employer-sponsored insurance, "creating potentially a lot of hassle, confusion and inefficiency," and that its suggestions so far aren't intended to allow employers to avoid law compliance.

 

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