New FAQs, released January 9, 2014, by the Departments of Health and Human Services, Labor and Treasury, provide helpful guidance on a grab bag of ACA requirements.4 We recommend that employers review the new FAQs as they offer new flexibility for compliance planning in the following areas:
- Wellness Programs – the FAQs confirm that if a participant declines to participate in a tobacco cessation program during open enrollment or at the time of initial eligibility, the plan is not required (but is permitted) to offer the participant a second chance to avoid the tobacco surcharge prior to the next open enrollment period.
- Out-of-Pocket Maximum ("OOPM") Requirements5 – the FAQs confirm that ACA's OOPM requirements do not apply to non-Essential Health Benefits, out-of-network benefits or non-covered benefits. The FAQs add flexibility in applying the OOPM requirements to the plans with multiple service providers. An employer is permitted to divide and allocate the OOPM among the different providers, in amounts the employer deems appropriate, provided that the combined total does not exceed the aggregate OOPM limit.
- Preventative Services6 – the FAQs explain special timing rules for implementing preventative services which are recommended by the U.S. Preventative Task Force (USPTF) in the future (generally, not earlier than one year after the recommendation).
- Insured Expatriate Health Plans – employers that provide health insurance to expatriate employees will need to understand new requirements to qualify for the delayed enforcement date for full compliance with ACA. To qualify for the delayed enforcement date (January 1, 2017, for calendar-year plans), the plan must be insured and limit coverage to employees who are expected, in good faith, to reside outside their home country or outside the U.S. for at least six months of a twelve-month period.
- Excepted Benefits – employers that offer "voluntary benefits" intended to be exempt from ERISA will need to understand the new requirements for a fixed indemnity insurance policy to qualify as an "excepted benefit" under ACA. The FAQs confirm that exemption from ERISA does not necessarily mean that the benefit is excepted from ACA.