As exchange coverage becomes less affordable for many households, more workers may look to employer-sponsored plans for stability, while employers that fund Individual Coverage Health Reimbursement Arrangements (ICHRA) to help employees buy coverage may need to revisit affordability and contribution strategies because the same employer funds may cover a smaller share of premiums than before when purchasing health insurance on Healthcare.gov and other state-run exchanges.

The temporary subsidy enhancements enacted during the COVID-19 pandemic removed the 400% federal poverty level income cap and increased the value of premium tax credits across income brackets. As a result, subsidized exchange enrollment nearly doubled between 2020 and 2024. If the enhanced subsidies expire, higher-income households will lose eligibility altogether while those who remain eligible will receive smaller credits and pay more for their share of the premium.

Increasing enrollment pressure

For employers offering traditional group health coverage, one likely consequence is increased enrollment pressure. As individual premiums rise, employees who previously declined employer coverage may opt in during open enrollment.

That could affect plan participation, contribution levels and claims experience particularly if workers with higher health care needs are more motivated to seek employer coverage.

Labor dynamics could also shift. Workers without access to affordable employer-sponsored coverage may be more inclined to change jobs to secure benefits, potentially influencing recruitment and retention in competitive labor markets. At the same time, fewer employees qualifying for exchange subsidies could slightly reduce applicable large employers’ exposure to costly ACA “pay or play” penalties, which are triggered when full-time employees receive premium tax credits.

ICHRA effects

The impact may be more immediate for employers offering ICHRAs, which reimburse employees for individual market coverage rather than providing a group plan.

If subsidies shrink and marketplace premiums rise, some ICHRA allowances that were previously affordable may no longer meet regulatory affordability thresholds. Employers may need to increase contribution levels or adjust benchmark assumptions to remain compliant.

Industry experts have also warned that abrupt shifts in individual market enrollment could create volatility. A contraction in exchange enrollment — particularly if healthier individuals drop coverage — could put upward pressure on premiums, further complicating affordability for both employees and employers relying on individual-market plans.

At the same time, the uncertainty may accelerate interest in alternative benefit strategies. Employers facing steep group plan renewals may explore ICHRAs to shift risk to the broader individual market, though that strategy becomes more complex if exchange affordability deteriorates.

What employers should consider now

Now that the enhanced subsidies have expired, employers may want to:

• Review group health plan affordability and employee contribution structures.
• Reassess ICHRA allowance levels and benchmark plans if applicable.
• Evaluate workforce demographics and possible enrollment shifts for 2026.
• Prepare employee communications that explain coverage options and tradeoffs.

Ever since the Affordable Care Act was enacted, critics of the law have said that employers would cut staff or reduce workers’ hours to avoid coming under the employer mandate requiring them to provide coverage for their staff.

But employers that decided to go that route could find themselves in a costly legal trap thanks to precedent-setting case that has been cited often by judges when confronted with challenges.

Workers at Dave & Buster’s, a restaurant chain, in July 2015 filed a lawsuit in the Southern District of New York alleging that the national restaurant chain reduced their hours to keep them from attaining full-time status for the purpose of avoiding the requirement to offer them health coverage under the ACA’s employer mandate.

In February 2016, the federal judge in the case, in declining the employer’s motion to dismiss the case, cited its likely breach of the Employee Retirement Income Security Act (ERISA), which prohibits employers from interfering with a worker’s right to benefits.

This case is significant because many other employers have implemented similar strategies striving to limit work hours for certain groups of employees for the purpose of avoiding penalties under the ACA.

Some background

The ACA’s employer mandate generally requires large employers (those with 50 or more full-time workers or full-time equivalent employees) to offer affordable and minimum value health coverage to their full-time employees (employees who regularly work an average at least 30 hours per week).

Employers are not generally required to offer coverage to employees working less than 30 hours per week on average.

Since the employer mandate took effect, many employers have been moving employees to part-time status to avoid triggering penalties under the employer mandate.

Why the case is important

The Dave & Buster’s employees alleged that the company violated ERISA by cutting their hours. They cited Section 510 of ERISA, which prohibits employers from discriminating against any participant or beneficiary for exercising a right under ERISA or an ERISA benefit plan.

The workers alleged that by reducing employees’ hours to keep them below the 30-hour weekly average to qualify as a full-time employee, Dave & Buster’s interfered with the attainment of the affected employees’ right to be eligible for company health benefits.

Dave & Buster’s in October 2015 filed a motion to dismiss the case, but the Southern District of New York federal judge denied the motion in February 2016.

The law firm of McDermott Will & Emery in its blog highlighted the importance of the decision, stating, “The opinion focuses on ERISA Section 510 and holds that the plaintiff has a viable claim that reducing her work hours was done for the purpose of interfering with her right to benefits under the company health plan.

“Second, the opinion finds that the complaint successfully alleged the employer’s ‘unlawful purpose’ and intention to interfere with benefits, pointing to allegations that company representatives publicly stated that they were reducing the number of full-time employees to avoid ACA costs.”

The law firm noted that the decision has given plaintiff’s attorneys a model for filing similar complaints when employers reduce hours to avoid their obligations under the ACA.

It also noted that if judges in other cases deny employers’ motions to dismiss cases, it will put the employer in a more difficult position because the employees’ attorneys will be able to take discovery and depositions, and to compel document production.

Any signs or proof of reducing hours to avoid their obligations under the ACA will make defending the case even more difficult, McDermott Will & Emery wrote.

If you have trimmed hours to avoid the employer mandate, or if you are contemplating doing so, it’s best that you first discuss these plans with your company lawyer.

FSA carryover rules loosened

The new law authorizes employers to amend their cafeteria plans and FSAs to either:

• Allow participating staff to carry over unused amounts from the 2020 plan year to the 2021 plan year (and from 2021 to 2022 as well), or
• Provide a 12-month period at the end of the 2020 and 2021 plan years.

Under existing law, employers can only allow employees to carry over $550 from one plan year to the next. The law also allows employees who stop participating in their FSA because they were terminated to continue receiving reimbursement from unused funds through the end of the year during which they stopped participating. Finally, under the CAA, employees can change how much they set aside into their FSA mid-year (usually they can only change their contribution levels ahead of a new plan year). In all of the above cases, employers must approve these changes and update them in their plan documents.

Health plan transparency

The CAA also bars “gag clauses,” which bar health insurers from entering into contracts that restrict a plan from accessing and sharing certain information. This is effective as of Dec. 27, 2020. The goal of these new rules is to increase transparency in pricing and quality information for health care consumers and plan sponsors. In addition, there are new requirements for health plan ID cards for enrollees, and they will be required to include the following information starting with the 2022 plan year:

• Deductibles that are applicable to their coverage
• Out-of-pocket maximum limits
• Phone number and website address that enrollees can access for assistance.

Surprise billing

The CAA also created the No Surprises Act, which will, starting with the 2022 plan year, cap a plan enrollee’s cost-sharing obligations for out-of-network services to the plan’s applicable in-network cost-sharing level for the following three categories of services:

• Emergency services performed by an out-of-network provider or facility, and post-stabilization care if the patient cannot be moved to an in-network facility;
• Non-emergency services performed by out-of-network providers at in-network facilities, including hospitals, ambulatory surgical centers, labs, radiology facilities and imaging centers; and
• Air ambulance services provided by out-of-network providers.

The takeaway

With so many changes, employers who sponsor group health plans for their workers need to have a plan to make sure they and their health plans comply. What to do now: If you offer FSAs to your staff and want them to be able to carry over funds from 2020 to 2021, and next year as well, you will need to make those changes to your plan documents. Employers that sponsor group health plans should review their agreements with their health insurers and ensure that their plan contractors include language indicating that the contract complies with the prohibition on gag clauses. What to prepare for: Starting with the 2022 plan year, employers should check with us or their insurer to make sure that the transparency changes are reflected in their plan documents and that their employees’ health plan cards also include the changes required by the new law. Plans should also reflect the new rules created by the No Surprises Act.

Coverage example

The coverage examples that appear on the last page of the document have been modified to reflect changes in the cost of medical services that occur over time due to inflation and other factors:

• “Managing Joe’s Type 2 diabetes” (diabetes example): The total amount of expenses incurred for “Joe” has decreased.
• “Mia’s simple fracture” (fracture example): The total amount of expenses incurred by “Mia,” who visited the emergency room for a simple fracture, has increased.
• “Peg is having a baby” (maternity example): The costs incurred during “Peg’s” hospital stay have been changed to remove separate newborn charges. The deductible line of the example should now match “your deductible amount” (if applicable).

Minimum essential coverage

Under the entry for minimum essential coverage, the template has been revised to reflect the elimination of the individual mandate penalty, which was repealed effective Jan. 1, 2019. The entry now indicates that individuals eligible for certain types of minimum essential coverage may not be eligible for a premium tax credit under the ACA marketplace.

Uniform glossary

The uniform glossary has been updated to remove references to the individual mandate penalty.

What to do

If you offer group health plans to your employees, you are a plan sponsor and thus required to distribute SBCs to staff who are eligible for coverage during open enrollment. The SBC must also be given to new hires within 90 days of hiring for mid-year enrollment. If you don’t have your latest SBC, you can contact us or your health insurer. The insurer is obligated to provide all covered employers with updated SBCs after the Department of Labor and the Department of Health and Human Services release changes to templates.

As the COVID-19 pandemic drags on and many Americans see unmet needs outside of their health insurance, more and more workers are increasingly signing up for the voluntary benefits their employers offer. While many workers in the past had skipped on voluntary benefits, they have grown concerned that a good group health insurance plan may not be enough to provide all the coverage they need. It’s important for employers to react to this trend as the pandemic has put many people on edge about how they can continue to pay the bills if they are laid up with COVID-19, and especially if they have long-haul symptoms that have plagued some people for months after first getting sick. Employers who fail to upgrade offerings could see higher turnover and more difficulty in retaining and attracting talent. More employers have added these insurance products to their voluntary benefit offerings. According to a recent Aflac survey, more than 80% of employers are looking at offering insurance plans that cover costs associated with coronavirus or a future pandemic. Also, many insurers are actively developing new plans and enhancing existing plans that pay benefits for prevention, diagnosis and treatment of a variety of virus strains.

Extra peace of mind

Voluntary benefits offer both employers and employees added peace of mind in uncertain times. These plans serve a dual role: In addition to helping pay expenses health insurance doesn’t cover, they also serve as a financial safety net if covered illnesses arise as complications of the coronavirus. There are a number of plans that can provide coverage that would be outside the scope of health insurance, including:

• Hospital indemnity insurance – This is a supplemental plan designed to pay for the costs of a hospital admission that may not be covered by other insurance. It will cover out-of-pocket expenses like medical copays, deductibles and regular expenses, such as food, rent and utilities.
• Critical illness insurance – These plans pay out in the event of covered critical illnesses. This insurance can help alleviate financial worries during a serious illness by providing a lump-sum cash payment to the insured person when they’re diagnosed with a specific critical illness. The benefit provides cash at a time when it may be needed most.
• Life insurance – In case the unthinkable happens.
• Disability insurance – These plans pay benefits when insureds are unable to work due to covered illnesses or injuries. If you have disability insurance and become injured or sick and lose your ability to work, you’ll get paid monthly disability insurance benefits to cover your lost income. Disability insurance can be bought individually, but many employers offer long-term and short-term disability insurance as part of an employee benefits package, like health insurance.

The pandemic has highlighted the need for these and other employee benefits that take care of the whole individual, rather than focusing on just health insurance. Executives at insurers that offer these products say that as Americans struggle to balance their work and home lives, particularly if they work from home as a result of the pandemic, they are looking to their employers for more support to help cover holes in their benefits.

The key: Education

If employers have too many voluntary benefit offerings and don’t do a good job of explaining how they complement each other, it can only lead to confusion among their employees. And if they are confused, the chance that they will opt for any of the plans is greatly diminished. That’s why education about the products, and how if set up properly they can provide a powerful level of protection for a variety of events, is crucial. If you’re interested in expanding the voluntary benefits you offer your employees, now is the time. We can help you get the ball rolling and help educate your staff on their choices and why they are important.

Far-reaching costs

Addicted workers have been found to have:

• Lower or lack of workplace productivity;
• Higher health care costs;
• Increased absenteeism and presenteeism;
• Diminished quality control;
• More disability claims;
• Increased workplace injuries;
• Lower morale;
• Higher job turnover; and
• Employee theft.

Some employers have tried to help employees tackle their addictions or abuse problems by implementing workplace prevention, wellness and disease-management strategies. These programs improve health, which lowers health care costs and insurance premiums and produces a healthier, more productive workforce. Under the ACA, anybody covered by a health plan has access to substance-abuse treatment. That’s because the law makes such treatment one of 10 benefits insurance plans must offer. The ACA requires health plans to pay for prevention and early intervention. Health care plans also have to comply with a “parity” law, which requires them to treat mental health issues the same way they do physical diseases.

What else can you do?

• You can start by adding addiction to your prevention, intervention, treatment and disease-management strategies.
• Use confidential screenings and assessments. There are a number of screening, brief-intervention and referral-to-treatment modules available to help people confront their drinking or drug use and get the help they need.
• Review your policy for coverage. If you have coverage for substance-abuse treatment, employees with addictions will be more apt to seek out help knowing the cost is at least partially covered.

And, importantly, make sure your substance-abuse benefit is robust, and that it covers a full continuum of care. A strong benefit would include:

• Inpatient care;
• Residential treatment programs;
• Outpatient care; and
• Continuing care for those in need of treatment.

The Centers for Medicaid and Medicare Services, IRS and the Department of Labor issued the final rules in late 2019. They reverse one of the major pinch-points of the Affordable Care Act, which bars employers from paying employees to buy their own health insurance either on publicly run health insurance exchanges or on the open market.

The fine for breaching this part of the law is a hefty $36,500 annually.

The rules continue to receive pushback from small business groups, insurers, regulators and others, who say that employers who want to go this route are facing a bureaucratic nightmare.

And one of the biggest concerns is that employers will use the opportunity to move older and sicker workers from their group health plans to exchanges, in order to reduce the cost burden on their plans.

Complexity a major issue

The National Federation of Independent Business has said that small businesses that want to offer workers an HRA integrated with an individual-market health plan are facing a lot of complexity.

“NFIB recommends that your departments plan to release… a publication that explains in plain English, step-by-step, how small businesses can establish, administer, and comply with the rules,” the group wrote.

HRAs are tax-sheltered accounts funded employers that typically are offered to reimburse employees for out-of-pocket medical expenses. This rule expands how those HRAs can be used. HRAs have been tax-advantaged only if they are coupled with an ACA-compliant group health plan. They cannot be used now to pay premiums for individual-market health insurance.

Under the rule, employers could provide an HRA that is integrated with individual health insurance coverage. The rule does include provisions to prevent employers from steering workers or dependents with costly health conditions away from the employer group plan and toward individual coverage.

Employers also could offer a different type of HRA, funded up to $1,800 a year, that could be used by employees to pay premiums for short-term plans that don’t comply with ACA consumer protections.

Employers could not offer the same employees the choice of either a traditional group plan or an HRA-funded individual-market plan. But they could offer a group plan to certain classes of employees, such as full-time workers under age 25, and an HRA plan to other classes, such as part-time employees.

Fears many may be shunted from group plans

Other concerns that are being raised include those by the American Academy of Actuaries that self-insured employers, in particular, may use the rule to shunt less healthy employees out of their group health plans, which in turn could result in worsening the ACA individual-market risk pool.

The Federation of American Hospitals expressed concern that the proposal would shift people out of the employer group market into the less stable individual market, which offers thinner benefits and less support for consumers.

The conservative National Federation of Independent Business supports the new rule but is concerned that it will be a complex process to set this type of arrangement up, especially for small businesses.

The liberal Center on Budget and Policy Priorities said the proposal to let a special type of HRA be used to buy short-term plans could be challenged legally, because the ACA and the Health Insurance Portability and Accountability Act (HIPAA) prohibit group plans from discriminating based on health status, as short-term plans are allowed to do.

• Self-care apps for employees experiencing occasional stress
• In-person therapy sessions
• Virtual therapy sessions
• Prescription medication to treat common, diagnosable conditions such as anxiety or depression.

Don’t forget your health insurance

Other options

• First, more workers are enrolled in plans that carve out prescription drugs, meaning that their expenditures on medication do not count towards satisfying their health plan deductibles. About 13% of employees are enrolled in a plan with a separate annual deductible that applies only to prescription drugs.
• Many people with workers face out-of-pocket costs linked to prescription list prices regardless of the actual net, post-rebate costs. That’s because coinsurance percentages are computed based on the price negotiated between the pharmacy and the plan or pharmacy benefit manager. These negotiated prices are typically close to list prices. Even worse, patients pay the entire negotiated price when they are within a deductible and do not enjoy the benefits of rebates that the PBM may have negotiated with drug makers. Patients with these benefit designs do not benefit from rebates, though major brand-name drug makers sell their products at half of the list prices.

• In the past, health plans had two- or three-tier benefit designs for drugs, mostly for generics and brand-name drugs, with lower copays and coinsurance for the lowest-tier medicines. But as prices have started increasing, many plans have four tiers and sometimes five (the specialty tier). The disappearance of two- and three-tier benefit designs have made out-of-pocket expenses especially high for specialty drugs. Plans place therapies for such chronic, complex illnesses as cancer, rheumatoid arthritis, multiple sclerosis and HIV on the fourth and specialty tiers of benefit plan, for which the enrollee has to pay a larger share.