Robert Pear, a New York Times reporter, made waves this week by calling the Internal Revenue Service and what happened to the Patient Protection and Affordable Care Act nondiscrimination provisions.
The IRS told him it will wait at least until 2015 to enforce the nondiscrimination rules, at the earliest, because defining terms such as “highly compensated employee” and “discrimination” has been difficult.
Originally, the rules were set to kick in September 2010.
Section PPACA 10101(d) added the non-discrimination rules to Section 2716 of the Public Health Service Act. The changes require insured group health plans to comply with the same sorts of anti-discrimination rules that self-insured employers have faced since the 1980s.
PPACA defines “highly compensated individuals” as a group that includes the five highest-paid officers, but also shareholders who own more than 10 percent of the company’s stock and the highest-paid 25 percent of the employees.
The IRS put out a notice seeking comments on the rules, IRS Notice 2010-63, in September 2010, and the agency has referred to the nondiscrimination rules in proposed regulations, such as the new proposed regulations that could create a new type of “wraparound insurance” that could fill in some of the holes left by PPACA exchange plan coverage.
Brokers have been trying to warn clients about the requirements.
TriNet, a professional employer organization, posted a Web notice assuring employers that they won’t have to comply with the testing requirements until the IRS posts regulations and administrative guidance.
But TriNet has encouraged clients to talk to its consultants about how the requirements could eventually affect plan funding strategies.
Bricker & Eckler, a law firm, has included a summary of the provision in its section-by-section summary of PPACA.
The Horton Group, an insurance broker, has included the provision on its PPACA implementation timeline and noted its status is uncertain.