The federal government shutdown could delay much-anticipated guidance on a number of provisions of the Affordable Care Act.
“If the shutdown lasts a week or two, that could really throw a monkey wrench into the timing of guidance,” says Paul M. Hamburger, co-chair of Proskauer’s employee benefits, executive compensation and ERISA litigation practice center. “The biggest problem with the shutdown, vis-a-vis guidance on the ACA, is the ability to get all of this updated guidance from the DOL, HHS and IRS out there quickly before the end of this year.”
At issue is the need for updated guidance on the employer mandate. While the mandate has been delayed until 2015, employers need to start preparing for it now by figuring out how they’re going to accurately measure and report to the IRS on which employees qualify as full time workers.
Hamburger says update guidance was expected in November but the shutdown may delay it. Employers are “just going to have to sit and wait and hope that when the shutdown is over, the guidance will come out,” he says.
Also at stake, he says, is regulatory guidance related to certain coverage mandates coming into effect in 2014. The requirement that waiting periods cannot exceed 90 days, the elimination of pre-existing conditions exclusions and other coverage-related mandates “all need some additional guidance, presumably before 2014,” says Hamburger. “The shutdown is going to dramatically reduce the extent to which that guidance can come out.”
The end result could be more of a reliance on FAQ-type guidance, rather than the preferred way of issuing proposed regulations for review and comment followed by the publication of final rules.
What employers should be doing now, says Hamburger, is looking at those 2014 coverage mandates and figuring out how they’re going to comply, even in the absence of official guidance. In the case of waiting periods, for example, “there are proposed regulations out there and I think employers need to look at that carefully and decide how they’re going to exercise reasonably good faith in interpreting those rules based on their particular waiting period,” he says.
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