Reprinted with permission from Employee Benefit Review - May 2014
The Patient Protection and Affordable Care Act (PPACA) contains requirements for both individuals and employers related to health care coverage. In order to assure compliance with certain of these requirements, PPACA requires new information reporting to the IRS related to individual and employer group health coverage. In particular, one item the IRS requires is information to confirm that an individual has minimum essential coverage and is not subject to the Section 5000A of the Internal Revenue Code (the “Code”) individual responsibility payment. As well, the IRS is seeking information to help it determine if an “applicable large employer” is subject to one of the “pay or play” penalties under Section 4980H of the Code. To that end, on March 5, 2014, the IRS released final regulations governing information reporting under Sections 6055 and 6056 of the Code with respect to health plan coverage. Section 6055, and the regulations thereunder, provide guidance on reporting of minimum essential coverage information. Section 6056 requires an applicable large employer to provide information with respect to its compliance with the shared responsibility provisions of Section 4080H of the Code. This information will be used to help determine if such applicable large employer must pay penalties if a full-time employees receives subsidized coverage on an exchange. Both sections require information to be provided to covered individuals as well as to the IRS.
The final regulations under Sections 6055 and 6056 apply for calendar years after December 31, 2014. As such, to avoid penalties for failure to provide the return, the information will need to be provided to the IRS and the individual in early 2016 reflecting coverage information from 2015. However, the IRS is encouraging voluntary compliance for 2014 to help ensure that 2015 reporting runs smoothly.
As described above, Section 6055 requires an entity that provides coverage to an individual to report whether minimum essential coverage has been offered. Such reporting entities include payers (e.g., insurance companies) and self-insured employers. The information reported generally regards the type and period of coverage related to covered individuals and dependents.
If coverage is being provided via insurance, then the issuer is generally responsible for the Section 6055 reporting. Exceptions to this general rule include coverage being provided by certain government programs (like Medicare) and qualified individual coverage under the health care exchange (other than those individuals enrolled through the Small Business Health Options Program (SHOP)).
If coverage is being provided via a self-insured plan, the plan sponsor is generally responsible for Section 6055 reporting. Where multiple controlled group members participate in a single plan, Section 6055 looks to the rules under Section 6056, which generally require each adopting employer be responsible for reporting coverage for its own employees. Controlled group members may cooperate with each other by having a single member assist in filing returns and furnishing statements for all members of the group.
Reporting under Section 6055 can be outsourced to a third party. If the third party fails to properly report, the liability for failure to provide the information to the IRS or the individual remains with the reporting entity under the general rules.
Section 6056 requires information reporting by applicable large employers (at least 50 full-time or full-time equivalent employees) to the IRS and participants. This report is designed to help the IRS administer compliance with the employer shared responsibility provisions of Section 4980H of the Internal Revenue Code. In other words, the return is intended to disclose whether affordable care was offered and whether there is compliance with the employer responsibility provisions of the Act, or if a penalty might be assessed.
The final regulations confirm that the applicable large employers who may have an obligation to report under Section 6055 and 6056 are able to report the information required by both of those sections together on the Form 1095-C. Self-insured employers will complete the information for both Section 6056 and Section 6055. Fully insured applicable large employers will complete only the Section 6056 information on such Form. Other forms are available for reporting entities that are not the employer. As described above, each member of a controlled group is responsible for reporting about its own employees (since penalties under Section 4980H are generally calculated on a per member basis (even though, and this is important to remember, the large employer status is determined looking at the controlled group as a whole)).
Information to be reported
The information required to be reported under Sections 6055 and 6056 includes numerous items which providers and employers should be diligent about gathering during the year.
For Section 6055, the information includes, but is not limited to:
The preamble to the final regulations goes into depth about what a reasonable effort is for purposes of securing an individual’s TIN. A reporting entity will be considered acting reasonably if the person “properly solicits” the TIN but does not receive it. A proper solicitation by a reporting entity is described to include an initial solicitation at the time the relationship with the payee is established (generally, by no later than December 31st of the initial relationship year.) If the TIN is not provided, a second solicitation is required by the following December 31. If there is still no TIN, then the reporting entity does not need to try again. The rules do provide that if a reporting entity has the TIN through other channels (for example, as an employer) and uses that TIN for all relationships with the payee, then a separate solicitation is not required. Finally, if a new individual is added to the coverage (such as a child), a solicitation is required with respect to the new individual, but not with respect to an existing covered individual, even if no TIN has been provided for that existing individual.
The coverage information referenced in the third bullet above requires that the reporting entity provide each month for which an individual is enrolled in and entitled for at least one day to receive benefits under the coverage.
For purposes of the Section 6056 reporting, the information that must be gathered and reported includes, but is not limited to:
Employees are also required to be furnished statements. If electronic distribution of these statements to employees is contemplated, the applicable large employer must receive consent similar to the consent required to make electronic disclosure of W-2s. The consent must specifically identify the return in question. Consent to distribute an electronic W-2 is not sufficient to cover the Section 6056 return. This type of consent is beyond what is typical for electronic disclosure of more generic benefit information.
Under the final rules, there are some simplified reporting methods that employers may be able to use for Section 6056 reporting including:
The penalties related to this information reporting generally follow the IRS reporting and disclosure penalty scheme. As with other IRS returns, these penalties may be waived if due to reasonable cause. There is also additional relief for 2016 reports (covering 2015) if good faith efforts to comply can be demonstrated and the issue is either incorrect or incomplete information on the return or statement. Failure to timely file or attempt to comply in good faith means this relief will not be available.
Sections 6055 and 6056 require a significant amount of new information to be reported to the IRS and furnished to covered individuals. Large employers and others tasked with gathering and reporting this information should be preparing the systems now to help assure compliance. It may make sense to test the compliance with the voluntary 2014 reporting (in early 2015). Employers should start working with counsel and other service providers to be prepared for the actual roll out covering the 2015 information.