Speak up about health coverage, IRS requests

The IRS requests comments to initiate the development of regulatory guidance regarding shared employer provisions in Code Sec. 4980H. The provisions apply for months beginning after December 31, 2013, in reference to health coverage provided by employers to their full-time employees. The notice invites comments on a number of possible rules, definitions and approaches that may be incorporated as future proposed regulations.

The Department of Treasury, the Department of Labor and the Department of Health and Human Services are working together to coordinate efforts on the shared employer responsibility provisions, the 90-day limitation on waiting periods, the automatic enrollment for employees of large employers and other provisions of the Patient Protection and Affordable Care Act (Affordable Care Act)

Definition of employer. The notice is divided into sections and one of the main issues available for commentary is the definition of an employer, full-time employee and hours of service. The determination of whether an employer is a large employer is discussed. Examples are provided with respect to hourly-paid employees, non-hourly employees, seasonal employees and applicable large employers. The IRS and Treasury are considering proposing possible alternatives to a month-by-month determination of full-time employee status for purposes of calculating an applicable large employer’s potential assessable payment. One option would be to permit applicable large employers to use a look-back/stability period safe harbor that would provide certainty with respect to employees considered full-time for a specific coverage period.

Comments are requested on the challenges employers may face in being able to offer coverage to certain categories of employees even after the changes made by the Affordable Care Act to the group insurance market and other situations where the application of the Code Sec. 4980H assessable payment may not be appropriate. A request is made for comments on the 90-day waiting period limitation, which is under the shared responsibility of the Treasury, DOL and HHS.

How to comment. There are three ways to submit comments:

• E-mail to: Notice.Comments@irscounsel.treas.gov. Include “Notice 2011-36” in the subject line.
• Mail to: Internal Revenue Service, CC:PA:LPD:PR (Notice 2011-36), Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044.
• Hand deliver to: CC:PA:LPD:PR (Notice 2011-36), Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC, between 8 a.m. and 4 p.m., Monday through Friday.

The deadline for comments is June 17, 2011.