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Posts Tagged ‘Affordable Care Act’

USCIS Creates Another Roadblock for Legal Immigrants

Posted on: August 8th, 2018

By: Kenneth Levine

A proposed Trump administration change to the “public charge” regulations, expected to be issued within the next few months, will dramatically alter the process for how Immigration Officers determine eligibility for citizenship or permanent residency.  USCIS designates an applicant as a “public charge” if they are likely to become predominantly dependent on government benefits for long term survival.  Currently, USCIS Officers focus on the petitioning sponsor’s income (or a cosponsor’s income if the petitioner’s income falls below the required amount) in assessing eligibility.  Section 212(a)(4) of the Immigration and Nationality Act currently allows USCIS to deem a permanent residency applicant ineligible if they are likely at any time to become a “public charge.” Although the current regulation appears to afford an Immigration Officer considerable discretion in assessing an Applicant’s public charge prospects, in practice there is virtually no discretion.  In other words, if the petitioner or the co-sponsor’s current income satisfies the affidavit of support, then USCIS will typically have no justifiable basis to deny an application on public charge grounds.

The new regulations would substantially redefine “public charge” criteria by creating new grounds of ineligibility if the foreign national (or immediate family members) ever obtained health insurance through the Affordable Care Act (ACA) or signed up for supplemental assistance programs for financial and/or nutritional assistance for their U.S. citizen children.  Moving forward, USCIS Officers will be allowed to analyze a foreign national applicant’s income, employment history, job skills, health status, assets, and any family history of having received public health benefits (no matter if they were legally entitled to receive such benefits).  This new approach will dramatically expand USCIS authority to deny a case based on the arbitrary whims of an Officer who looks unfavorably on an applicant’s job history or the amount of money they have saved in the bank.

At this point it is unknown whether there will be different public charge standards for permanent residency or citizenship applicants.  Regardless, FMG Immigration Attorneys fully expect that federal litigation will ensue once USCIS attempts to implement the new public charge regulations.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Not Just for Trust Fund Babies Anymore

Posted on: May 3rd, 2018

By: Bryce M. Van De Moere

Even with the existence of the Affordable Care Act, the preferred way to get health benefits is still through your employer.  Health insurance packages have become an integral part of employee compensation.  As employers continue to offer health benefits to their employees, liability for employers has also increased exponentially; not only in terms of how to shoulder the premium increases brought on by the utilization of an aging workforce but also exposure to legal action brought on by perceived deficiencies in the quality of the benefits.

Welfare Benefit Plans are described in Title 1 of the Employee Retirement Income Security Act of 1974 (ERISA) which governs any plan, fund or program that provides (among other things), “medical, dental, prescription drugs, vision, psychiatric, long term health care, life insurance or accidental death or dismemberment benefits.” Regulation of these plans is federally governed and penalties for violation of the regulations can be severe. Further complicating an already difficult area, many employers are approaching health insurance carriers and contracting with them directly.  They are a signatory to a contract to offer benefits to an employee group and as such can be liable for claims made by their employees.   As such, when representing employers, especially those in the public sector, such as Municipalities and School Districts who have a unionized employee base with whom they are required to collectively bargain, it is of vital importance that those employers be shielded from liability, not only from their own employees but also from the penalties associated with failure to comply with state and federal laws that govern those benefit plans and the agencies that enforce those penalties.

One option employers should consider is banding together and pooling their employees by forming or joining a VEBA, or Voluntary Employee Benefit Association. A VEBA is an Internal Revenue Code Section 501(c)(7) Trust that is generally tax exempt and defined as “a mutual association of employees providing certain specified benefits to its members or their designated beneficiaries which may be funded by the employees or their employer.”  VEBA’s are legal entities that take the place of the individual employer.  Much like incorporation protects your personal assets, a VEBA can protect the employer’s business.

A VEBA is guided by a Board of Trustees made up of the member employers (and sometimes union representatives.)  The Trust is now the signatory to the contract.  The employer and their employees become a part of a much larger group or “pool” buying benefits in bulk which helps promote price stabilization and increases negotiation power. The Board of Trustees is also allowed to delegate the responsibilities of the Trust, which means they can hire a Trust ERISA counsel and Trust auditor to ensure regulatory compliance and a Trust Benefit Administrator to manage the claims of the benefit plan members.  This further shield’s the employer from responsibility and liability.

This is just one of the vehicles available for the management of employee benefit plans. If you have questions about this or other options available under the Internal Revenue Code, feel free to contact me at [email protected].

DOL Issues Model “Notice of Exchange” for Use by Employers

Posted on: May 28th, 2013

By: David Cole

The U.S. Department of Labor recently released new guidance on the “Notice of Exchange” employer disclosure responsibility under the Affordable Care Act, along with two model notices that employers may use to meet this requirement.  Under the Affordable Care Act, all employers who are subject to the Fair Labor Standards Act must give written notice to employees of the availability of insurance through state or federal health exchanges, which are scheduled to open for enrollment on October 1, 2013, for coverage to begin on January 1, 2014.  In a prior post, we reported that the DOL extended the deadline for providing this notice to employees from March 1, 2013, until an unspecified time sometime in the “late summer or fall” of 2013.

Given this prior announcement, the DOL’s publication of the model notices in May is much earlier than expected.  This seems to be the DOL’s response to a large number of requests from employers to provide model notices before then.  Thus, the DOL says the new guidelines are only interim guidelines, but that employers may rely on them and the model notices until it issues final regulations.  Under the interim guidelines, employers must provide all of their employees with the required notice by October 1, 2013, which is the date open enrollment in the exchanges is scheduled to begin.  This applies regardless of full-time or part-time status, and regardless of their enrollment status under existing group plans.  Thereafter, employers must provide notice to each new employee upon hire, which the guidelines define as within 14 days of an employee’s start date.

The DOL’s interim guidance provides two model notices for use by employers – one for employers that offer group health coverage, and one for employers that do not.  Both versions provide the required information about the existence of exchanges and the services they provide, the availability of premium tax credits and cost-sharing reductions, and the potential for losing employer contributions to any health plan sponsored by the employer.  In addition, the version for employers that offer group health coverage contains information about the employer and its group health coverage options in numbered sections that correspond to items the employee will have to complete when enrolling for coverage and/or financial aid through an exchange.  Employers are not required to complete this section unless and until an employee requests the information in order to enroll through an exchange, but supplying the information up front is a good idea because it will let employees enroll through an exchange without seeking individualized help from the employer.

Employers do not have to use the model notices, and are free to instead prepare their own versions of notice, so long as it provides all of the information required by the statute.  In addition, the guidance states that the notice must be provided in writing in “a manner calculated to be understood by the average employee,” a standard which presumably is met by the model notices.   Employers may deliver it by first-class mail, in person at the workplace, or electronically if certain DOL safe harbor requirements are met.



Healthcare Act: DOL Extends March 1st Deadline for Employers to Give Notice of Exchanges

Posted on: February 5th, 2013

By: David Cole

The Affordable Care Act requires employers to provide written notice to employees of the availability of insurance through state or federal health exchanges, which are scheduled to begin operation on January 1, 2014.  The written notice must inform employees about the following:

(1)   the existence of an Exchange in their state, including a description of Exchange’s services, and how the employee may contact the Exchange for assistance;

(2)   the employee may be eligible for a premium tax credit or cost sharing reduction for buying qualified insurance through the Exchange if the insurance plan offered by the employer does not pay at least 60 percent of the total allowed costs of benefits; and

(3)   if the employee buys qualified insurance through the Exchange, he may lose the employer’s contribution (if any) to any health benefits plans offered by the employer, which if received, may be tax deductible.

The statute requires that this notice be provided to all new employees at the time of their hire, and to existing employees by no later than March 1, 2013.  With this deadline approaching quickly and no regulations or other guidance provided yet (such as a model notice), the Department of Labor (“DOL”) has officially announced an indefinite extension of the deadline.  The DOL did not announce a new deadline, but only stated that it “expects that the timing for distribution of notices will be the late summer or fall of 2013, which will coordinate with the open enrollment period for Exchanges.”  In addition, the DOL confirmed that it is considering providing model, generic language that employers could use to satisfy the notice requirement.

The complete text of the DOL’s announcement is available here.  Between now and this summer, the DOL is expected to issue regulations providing further guidance on the notice requirement and other aspects of the law, including the automatic enrollment requirement applicable to large employers with 200 or more employees.  In the meantime, employers can breath a little easier knowing that they do not have to scramble to provide notice to their employees by March 1st.