Tomorrow’s the Exchange-Notice Deadline

If you haven’t done a thing yet to become compliant with the Affordable Care Act’s Oct. 1, 2013, deadline for posting and distributing your public-healthcare-exchange notices … well … kinda too late at this point, right?

99274052--gavel and hourglassThe good news is there’s no penalty in place yet for ACA noncompliance. That won’t be ushered in now until Jan. 1, 2015, when the emplyoyer mandate is enforced. And the U.S. Department of Labor also just announced several days ago that there will be no penalty for failing to comply with the exchange-notice deadline tomorrow.

But, penalties or no, if you haven’t gotten your ducks lined up, there’s much to be done. This post on The National Law Review website spells out in detail just what’s required of you, effective tomorrow — the same day all exchanges must be open for enrollment for coverage starting Jan. 1, 2014:

The health-insurance-exchange notice must provide employees with information necessary to make informed decisions about their health insurance. The notice must explain what the web-based exchange is; include information about the premium subsidies that may be available if an employer’s plan is unaffordable or does not provide minimum value; and explain the consequences if an employee decides to purchase a qualified health plan through the exchange instead of employer-sponsored coverage. (The notice does not, however, need to explain what insurance options may be available online.) The notice may be distributed electronically or via hard copy, and while there is no requirement to obtain an employee’s signature, employers may want to track delivery and receipt of the notice. Additionally, after Oct. 1, 2013, employers are required to provide notices to new hires within 14 days after the date of hire.”

The Law Review post also contains links to the two model notices the DOL has made public — one for employers that do offer health plans to their employees and another for those that do not.

And remember, this notice requirement applies to all employers subject to the Fair Labor Standards Act, whether they’re consiered “applicable large employers” (employing at least 50 full-time-equivalent employees) or not. Where that “large employer” differentiation will apply will be in the enforcement of the delayed employer mandate. (No doubt I’m sharing things most of you are fully aware of, but I figure it doesn’t hurt to remind.)

I contacted Lori Basilico — a partner at Boston-based Edwards Wildman Palmer specializing in employee benefits — just to get her sense of what tomorrow’s deadline would bring. Since the DOL’s notice that there would be no penalty for Oct. 1 noncompliance, she told me, there won’t be too much frantic scuffling.

Besides, she says, “most of my clients seem to be complying with it anyway.”

The real confusion lies in what’s coming in 2015 and what that means you’d better be doing in 2014 to get ready, says Basilico. The biggest confusions among employers, she says, are twofold. One conundrum is whether they’re “applicable large employers,” penalizable under the new law. The stickler here is what constitutes an FTE — which could, in turn, impact your 50-or-more count. The law sets the definition of FTE at 30 hours a week or more, but what about “part-timers and other people who don’t necessarily work around hours counted?” says Basilico. “For universities, there’s confusion around adjunct professors, for instance.”

The second big confusion — actually integral with the first — has to do with who’s full-time and who’s part-time. “This gets very confusing for people hovering at, say, 29 to 30 hours a week,” she says. Maternity leave and Family and Medial Leave Act leave might also muck up the waters, as might the ACA’s “look-back” clause designed to help employers accurately count their FTEs prior to the employer-mandate enactment … as might the fact that that date was extended a year from January 2014 to January 2015 awhile back … as might the fact that, under the law, part-timers’ hours can be aggregated to equal FTE counts … the “as might” list goes on.

Yes, Basilico says, “it’s going to be difficult for awhile, but as soon as employers get this figured out, once a couple years have gone by [and they’ve lived with the law and gotten it under their belts], this will be easier … .”

And how are employees feeling about all this? In a recent Tell It Now poll, timed to coincide with tomorrow’s exchange-notification deadline, Chicago-based ComPsych asked employees in its database, “How concerned are you about upcoming healthcare changes (ACA/’Obamacare’)?” Seventy-five percent said they were either very worried or somewhat worried. Here’s the actual breakdown:

  • 47% said, “I’m somewhat worried: I’m not sure how I will be impacted or what to expect.
  • 28% said, “I’m very worried: The changes will impact me significantly, and I don’t know where to turn for information.
  • 25% said, “I’m not worried: The changes won’t impact me/I know what to expect.

If nothing else, this should provide you with some impetus to examine your communication initiatives around “Obamacare” to ensure they’re relieving whatever worries they possibly can. And what better time to get started than the day your exchange notification is due?