Marketplace Employer Notices and Employer Appeal Request Forms

By: Grace Taylor, Capstone Brokerage Vice President, August, 11, 2016

The U.S. Department of Health and Human Services (HHS) has released a sample employer notice that the federally-facilitated Marketplace and some state-based Health Insurance Marketplaces (Exchanges) will be using as part of the employer notice program. This program requires the Marketplaces to notify employers that one of their employees has been determined eligible to receive advance payments of the Premium Tax Credit, and/or cost-sharing reductions by enrolling in a Marketplace plan. Because these actions may trigger employer penalties under the Affordable Care Act’s (ACA) “pay or play” provisions, an employer appeal request form has been provided by HHS.

The Federally-Facilitated Marketplace’s1 (FFM) 2016 Employer Notice Program

What is the employer notice program? The Affordable Care Act and implementing regulations require each Health Insurance Marketplace to notify any employer whose employee was determined eligible for advance premium tax credits (APTC) and cost sharing reductions (CSRs). The employee attested that he or she was neither enrolled in employer sponsored coverage nor eligible for employer coverage that is affordable and meets the minimum value standard. Starting in 2016, the FFM will notify specific employers whose employees enrolled in Marketplace coverage with an APTC. The FFM will send notices to employers if the employee received APTC for at least one month in 2016 and if the FFM has an address for the employer.

Q. How is the FFM implementing the employer notice program in 2016?

The FFM has begun sending notices to certain employers, and will expand to more employers in later years. As part of its efforts at public education in 2015, the FFM has used consumer outreach programs to explain the importance of attesting correctly to their eligibility for an enrollment in an employer sponsored plan. The FFM has been emphasizing the benefit of using the employer coverage tool and continues to look at ways to make it more useful for consumers.

Q. Will employers be liable for the employer shared responsibility payment for 2015 if a full-time employee received a premium tax credit through a Marketplace in that year?

Yes. The IRS will independently determine any accountability for the employer shared responsibility payment without regard to whether the Marketplace issued a notice or the employer engaged in any appeals process. More information on the IRS process can be found at www.irs.gov.

Q. Which employers will be notified through the employer notice program in 2016?

In 2016, the FFM will send notices to employers whose employees received APTC in 2016 and whose employees provided the Marketplace with a complete employer address.

• The notice describes the process that will be used for all states operating on HealthCare.gov, including FFM states and SBMs using the federal platform.

• The notice will identify the specific employee and include a statement that the employee is enrolled in a Marketplace plan and receiving an APTC. The notices will not contain the employee’s personal health information or federal tax information. For 2016, the FFM will not notify employers when an employee who was benefiting from APTC or CSRs terminates Marketplace coverage.

Q. When can employers expect to receive the Marketplace notices?

The FFM will be sending these notices in batches. They expect to send the first batch in spring of 2016, following the close of Open Enrollment for the 2016 coverage year. This will likely be the largest batch of notices as it will include employers whose employees enrolled in Marketplace coverage with APTC during Open Enrollment, which ends on January 31, 2016. The FFM will send additional batches of notices throughout the year in 2016.

Q. How will employers receive these notices?

For 2016, the FFM will be sending notices to the mailing address of the employer provided by the employee on his or her application for Marketplace coverage. As the FFM continues their implementation of the employer notice program, it will consider alternative ways of contacting employers.

Q. What happens if an employer wants to appeal an employer notice from the FFM?

An employer may appeal an employer notice and affirm that they provide the employee access to an affordable, minimum value employer sponsored plan; or that the employee is enrolled in the employer coverage and therefore is ineligible for an APTC. The FFM will share the employer appeal with the employee by mailing out a notice to them encouraging the employee to update their Marketplace application to reflect that he/she has access to or is enrolled in other coverage. The notice will also explain that failure to update the application may result in a tax liability.

Q. How does an employer submit an appeal of an employer notice to the FFM?

• An employer has 90 days from the date of the notice to request an appeal. An employer appeal request form is available at: https://www.healthcare.gov/marketplace-appeals/.
• An employer must mail an appeal request to the following address:
a. Health Insurance Marketplace 465 Industrial Blvd. London, KY 40750-0061.
• An employer may also fax their appeal request to a secure fax line at: 1-877-369-0129.
• Not responding to the notice does not mean the employer won’t have to respond to the IRS later.

Receipt of Notices

Under the HHS Notice of Benefit and Payment Parameters, Marketplaces must notify employers within a reasonable timeframe following any month of the employee’s eligibility determination and enrollment. While the Marketplaces are permitted to send employer notices either on an employee-by-employee basis or in groups of employees for 2016, the Marketplaces intend to send notices in groups of employees.