The newish ACA (Obamacare) regulation you may be breaking right now.

February 20, 2016

Since 2014 the Affordable Care Act, AKA Obamacare, has been giving employers fits with regulations and rules that they need to be in line with. It’s been fluid to say the least as far as determining what is in bounds, what is out of bounds, what was once ok, isn’t anymore. It’s a regulatory minefield, and the feds keep laying out more mines it seems.

The most recent change to the rules isn’t so much a change as it is a running clarification that has recently come to a head. Prior to 2014 it was a common practice for employees to go out and get individual (non-group) medical insurance and have an employer reimburse the premium cost. This would be used with a section 105 HRA in most cases. Technical guidance from the IRS prior to Obamacare’s January 1, 2014 kickoff dictated that these plans were considered to be group health plans and subject to market reforms.

You better watch out doing this now. Reimbursements by companies for individual medical plans (HRA’s, Section 125’s or otherwise) has been deemed out-of-bounds by the ACA (Obamacare). There have been several technical releases by the IRS, Dept of Labor and HHS on the matter. At the end of the day, if a company is reimbursing employees for individual health insurance policies, or direct paying insurance companies for individual health insurance policies you are opening yourself up to a fine by the Feds.

This link The Affordable Care Act Implementation Part XXII goes to technical guidance released November of 2014 and goes into detail and clarifications from prior (Sept. 2013 and May 2014) releases from the IRS. The fines are as much as $100 per day per effected employee or up to $36,500/year.

More recent guidance from the IRS in February 2015 with Notice 2015-17 (Employer Health Care Arrangements) gave a moratorium of sorts to companies to get in line by June 30th 2015. While it may seem magnanimous on one hand to give companies a break, it would seem that the gloves will come off as of July 1.

The one way i’m aware of that you can do this and stay in bounds is to pay employees more salary. You can’t dictate to employees that it is used for coverage (per mandate as it would constitute a reimbursement) and there is the tax issue and expense because it can’t be treated as a pre-tax deduction.

My advice, don’t do it. Go with the group plan, PEO or otherwise. Stay out of the Feds crosshairs. If you need more help on the matter or to find a suitable plan, i’d be happy to help (shameless plug).

Do members of a board of directors need insurance? Why?

February 18, 2016

Members of a board of directors will be making a flurry of decisions that will have a profound impact on a company. Some of these decisions will be difficult and will have an impact on many interested parties. Put simply, not every decision a board makes is going to sit well with everyone.

If a board of directors makes a decision that could potentially harm another party, that party can turn around and sue not only the company but the directors and officers themselves. Because directors and officers can be sued personally, this can result in the personal assets of such directors and officers being at risk. This is where the D&O insurance comes into play. It insures directors and officers against such risks.

What if a company makes it a point to protect their Directors and Officers by indemnifying them in the event of such a lawsuit? D&O coverage also insures companies from going out of pocket to reimburse directors and officers by indemnifying the company in that case. Either way, the insurance sees to it that neither a director, officer or the company itself is left holding the bag.

D&O actions can stem from many different parties, company stakeholders, customers, competitors, even a company’s own employees. It can come from a lot of places. The stakes are high, according the Chubb 2013 Private Company Risk Survey, the average total cost of a D&O claim was $697,902 including judgments, settlements, fines and legal fees.

Needless to say, were talking about big money. Companies need to take steps given the rise in D&O claims and the exposure that they encompass.

Another potential key reason to this doesn’t directly speak to risks a board runs, but more to a requirement by a third party. Funding mechanisms such as venture capital and seed funding will typically require Directors and Officers insurance as a pre-requisite to closing out a funding deal. These outside parties want to see that their interests are protected and as such will make it a contractual obligation that a company get this in place before signing off.

How much do first year startups pay employees in benefits per month?

February 13, 2016

For starters, let’s assume that you want to limit this to the basics, medical and dental. Let’s also assume that you want to make a competitive contribution of 75% on a moderate to high level plan for both benefits.

On medical coverage, a good cost yardstick for a plan in CA, NY or MA (a few of the higher cost markets) would be $500/month for a single employee, $1,000/month for couple or single parents and $1,800/month for a full family. For dental coverage, yardstick numbers would be $50, $100, $150/month for single/couple or single parents/family plan price points.

If you are a funded startup looking to recruit and retain employees, that 75% employer contribution will make for a good yardstick as far as how much an employer will contribute. If a startup isn’t funded it will be less. If you are not a startup at all and in the tech space, it will likely be more. Industries where perhaps the fight for talent isn’t as bad (manufacturing, retail) this may a lesser percentage for startups.

Getting to the bottom line on a 75% contribution on medical and dental, the employer contribution costs break out a follows:

single participant: medical is $500/mo, dental is $50, $550 total. 75% of this would be $550 x .75 or $412.50/mo ($4,950/annual)

couples or single parents: medical is $1,000/mo, dental is $100, $1,100 total. 75% is $825/mo ($9,900/annual)

family: $1,800/mo, $150 dental, total $1,950/mo. 75% is $1,462.50/mo. (17,550/annual)

Keep in mind, properly set up the 25% employee contribution will be pre-tax payment on the coverage. Both parties would gets the tax break on the contribution so it’s not straight after tax dollar expense. These employer contributions in the mock up example would constitute what a startup would pay in benefits per year in pre-tax dollars on medical and dental coverage. It’s not directly paid to employees as the question is written, but if you are doing a group medical plan for the company, direct payment isn’t how it works. If a company is paying or reimbursing employees directly for non-group medical policies that an employee directly owns, that’s a violation of the ACA/Obamacare laws which is a whole different can of worms you don’t want to open.

I advise my clients to take these numbers into account as well as the demographics of their hiring. Use a figure the works as an average total annual outlay for benefits expenses per employee and figure that into a total compensation package when setting up and offer for a potential hire. Don’t just throw extra salary at a potential employee with a family while having a very low contribution level on benefits and expect things to go well. Benefits matter to those with spouses and children.

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