When a data breach or other cyber event occurs, the damages can be significant, often resulting in lawsuits, fines and serious financial losses. What’s more, cyber exposures impact businesses of all kinds, regardless of their size, area of focus, or status as a private or public entity.
In order for organizations to truly protect themselves from cyber risks, corporate boards must play an active role. Not only does involvement from leadership improve cyber security, it can also reduce liability for board members.
To help oversee their organization’s cyber risk management, boards should ask the following questions:
Does the organization utilize technology to prevent data breaches?
Every company must have robust cyber security tools and anti-virus systems in place. These systems act as a first line of defense for detecting and preventing potentially debilitating breaches.
While it may sound obvious, many organizations fail to take cyber threats seriously and implement even the simplest protections. Boards can help highlight the importance of cyber security, ensuring that basic, preventive measures are in place.
These preventive measures must be reviewed on a regular basis, as cyber threats can evolve quickly. Boards should ensure that the management team reviews company technology at least annually, ensuring that cyber security tools are up to date and effective.
Has the board or the company’s management team identified a senior member to be responsible for organizational cyber security preparedness?
Organizations that fail to create cyber-specific leadership roles could end up paying more for a data breach than organizations that do. This is because, in the event of a cyber incident, a fast response and clear guidance is needed to contain a breach and limit damages.
When establishing a chief information security officer or similar cyber leadership role, boards need to be involved in the process. Cyber leaders should have a good mix of technical and business experience. This individual should also be able to explain cyber risks and mitigation tactics at a high level so they are easy to understand for those who are not well-versed in technical terminology.
It should be noted that hiring a chief information security officer or creating a new cyber leadership role is not practical for every organization. In these instances, organizations should identify a qualified, in-house team member and roll cyber security responsibilities into their current job requirements. At a minimum, boards need to ensure that their company has a go-to resource for managing cyber security.
Does the organization have a comprehensive cyber security program? Does it include specific policies and procedures?
It is essential for companies to create comprehensive data privacy and cyber security programs. These programs help organizations build a framework for detecting threats, remain informed on emerging risks and establish a cyber response plan.
Corporate boards should ensure that cyber security programs align with industry standards. These programs should be audited on a regular basis to ensure effectiveness and internal compliance.
Does the organization have a breach response plan in place?
Even the most secure organizations can be impacted by a data breach. What’s more, it can often take days or even months for a company to notice its data has been compromised.
While cyber security programs help secure an organization’s digital assets, breach response plans provide clear steps for companies to follow when a cyber event occurs. Breach response plans allow organizations to notify impacted customers and partners quickly and efficiently, limiting financial and reputational damage.
Board members should ensure that crisis management and breach response plans are documented. Specific actions noted in breach response plans should also be rehearsed through simulations and team interactions to evaluate effectiveness.
In addition, response plans should clearly identify key individuals and their responsibilities. This ensures that there is no confusion in the event of a breach and your organization’s response plan runs as smoothly as possible.
Has the organization discussed and formalized a cyber risk budget? How engaged is the board in terms of providing guidance related to cyber exposures?
Both overpaying and underpaying for cyber security services can negatively affect an organization. Creating a budget based on informed decisions and research helps companies invest in the right tools.
Boards can help oversee investments and ensure that they are directed toward baseline security controls that address common threats. Boards, with guidance from the chief security officer or a similar cyber leader, should also prioritize funding. That way, an organization’s most vulnerable and important assets are protected.
Has the management team provided adequate employee training to ensure sensitive data is handled correctly?
While employees can be a company’s greatest asset, they also represent one of their biggest cyber liabilities. This is because hackers commonly exploit employees through spear phishing and similar scams. When this happens, employees can unknowingly give criminals access to their employer’s entire system.
In order to ensure data security, organizations must provide thorough employee training. Boards can help oversee this process and instruct management to make training programs meaningful and based on more than just written policies.
In addition, boards should see to it that education programs are properly designed and foster a culture of cyber security awareness.
Has management taken the appropriate steps to reduce cyber risks when working with third parties?
Working alongside third-party vendors is common for many businesses. However, whenever an organization entrusts its data to an outside source, there’s a chance that it could be compromised.
Boards can help ensure that vendors and other partners are aware of their organization’s cyber security expectations. Boards should work with the company’s management team to draw up a standard third-party agreement that identifies how the vendor will protect sensitive data, whether or not the vendor will subcontract any services and how it intends to inform the organization if data is compromised.
Does the organization have a system in place for staying current on cyber trends, news, and federal, state, industry and international data security regulations?
Cyber-related legislation can change with little warning, often having a sprawling impact on the way organizations do business. If organizations do not keep up with federal, state, industry and international data security regulations, they could face serious fines or other penalties.
Boards should ensure that the chief information security officer or similar leader is aware of his or her role in upholding cyber compliance. In addition, boards should ensure that there is a system in place for identifying, evaluating and implementing compliance-related legislation.
Additionally, boards should constantly seek opportunities to bring expert perspectives into boardroom discussions. Often, authorities from government, law enforcement and cyber security agencies can provide invaluable advice. Building a relationship with these types of entities can help organizations evaluate their cyber strengths, weaknesses and critical needs.
Has the organization conducted a thorough risk assessment? Has the organization purchased or considered purchasing cyber liability insurance?
Cyber liability insurance is specifically designed to address the risks that come with using modern technology—risks that other types of business liability coverage simply won’t cover.
The level of coverage your business needs is based on your individual operations and can vary depending on your range of exposure. As such, boards, alongside the company’s management team, need to conduct a cyber risk assessment and identify potential gaps. From there, organizations can work with their insurance broker to customize a policy that meets their specific needs.
Asking thoughtful questions can help boards better understand the strategies management uses to prevent, detect and respond to data breaches. When it comes to cyber threats, organizations need to be diligent and thorough in their risk prevention tactics, and boards can help move the cyber conversation in the right direction.
Cyber exposures impact organizations from top to bottom, and all team members play a role in maintaining a secure environment. However, managing personnel and technology can be a challenge, particularly for organizations that don’t know where to start.
That’s where Scurich Insurance can help. Contact us today to learn more about cyber risk mitigation strategies you can implement today to secure your business.
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Serving alcohol is a common practice for restaurants, bars, catering companies, entertainment venues and similar establishments. While providing a wide array of beverage options is important, serving alcohol in particular can create a variety of risks for business owners.
For instance, if a patron of your business becomes intoxicated and injures a third party or causes property damage, you could be held liable for the damages. In order to protect your business from serious financial and reputational losses, it’s important to consider purchasing liquor liability insurance.
What is Liquor Liability?
The term liquor liability refers to an organization’s legal and financial responsibility for the actions of individuals who consume alcohol at their establishment. Under liquor liability laws, a business can be found liable for both the bodily injury and property damage caused by a person they improperly served alcohol to.
What is Liquor Liability Insurance?
Liquor liability insurance is designed to protect any business that sells or serves alcoholic beverages. Specifically, this type of insurance covers damages that result from things like fights, careless behavior or automobile accidents caused by individuals who have consumed alcohol.
Liquor liability is important, as it protects you should your clients or patrons sue your business for damages related to their intoxication—something a general liability policy won’t cover.
Most businesses carry a general liability policy, which covers claims against your business for bodily injury, property damage or personal injury. While these policies often include host liquor liability coverage, they only provide protection related to the incidental service of alcohol. While host liquor liability may protect you if you are simply serving alcohol at a company party, it does not offer the coverage you need if you sell alcohol as part of your business.
What’s more, the majority of states require establishments that serve, sell or assist in the purchase of alcohol to carry liquor liability insurance. As such, it’s important to know what to look for in a policy.
What Should My Policy Account For?
When it comes to protecting your business from any kind of liability, it’s critical that you account for common risks. In order to secure the right level of coverage, keep in mind the following policy enhancements when shopping for liquor liability insurance:
Assault and battery coverage.
When alcohol is involved, fights are a common risk. However, many liquor liability policies exclude coverage for assault and battery. Therefore, it’s important to ensure you account for this protection when building your policy. It should be noted that assault and battery coverage can also be extended to include specific incidents such as sexual assault, stabbings and shootings.
Defense costs.
Legal fees from liquor-related claims can easily exceed tens of thousands of dollars. Be sure that your policy accounts for defense costs outside of the policy limit. Otherwise, legal expenses could quickly exhaust your policy limit, leaving little to no insurance to pay for any damages.
Employees included.
Even if you forbid your employees to drink on the job, there’s a chance that they may disregard your instruction. Look for a policy that will cover your employees as patrons to better protect your business from liquor-related incidents.
Mental damages.
In the event of a lawsuit, claimants may allege they were injured in nonphysical ways. In these instances, patrons could sue you for stress, mental anguish or psychological injury. Ensure that your policy accounts for these types of injuries.
It should be noted that liquor liability insurance won’t cover claims that arise from the sale of alcohol to minors or similar illegal transactions. Be sure your employees are instructed to verify patrons are of legal drinking age.
What Determines Pricing?
The underwriting process for liquor liability insurance can differ depending on the type of business you conduct. In general, the following four factors determine the rating and pricing of coverage:
Type of venue. When examining a business’s risk, underwriters look to identify the primary purpose of a venue. If you own a restaurant, the primary purpose of your venue is to serve food, so you are generally considered to have less risk than a nightclub or tavern.
Location of the venue.
Liquor laws can vary drastically depending on the jurisdiction. Each state has its own scoring system based on the nature of local dram shop laws. Dram shop laws impose certain liability standards on area venues that serve alcohol. Because the strictness of these laws may change from location to location, where you operate your business can have a major impact on how your liquor liability insurance is priced.
Percentage of liquor sales.
As a general rule, the more alcohol sales you make, the higher your premiums will be. This factor tends to have more of an impact on pricing than venue type, as a restaurant that has a high percentage of alcohol sales may be priced similar to a bar.
Individual traits of the risk. There are a number of miscellaneous variables underwriters will take into consideration when pricing out policies, including the following:
- Types of entertainment offered
- Experience level of management
- Formal loss control measures
- Security measures and procedures for dealing with intoxicated patrons
Serve Your Patrons Responsibly
When serving liquor, the best way to protect your business from potential claims is through proper risk management and liquor liability insurance. These policies can be complex, and it’s important to discuss the nature of your operations with a qualified insurance broker. Contact Scurich Insurance today to learn more.
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The Affordable Care Act (ACA) has made a number of significant changes to group health plans since the law was enacted in 2010. Many of these key reforms became effective in 2014 and 2015, including health plan design changes, increased wellness program incentives and the employer shared responsibility penalties.
Certain changes to some ACA requirements take effect in 2018 for employers sponsoring group health plans, such as increased dollar limits. To prepare for 2018, employers should review upcoming requirements and develop a compliance strategy.
This ACA Overview provides an ACA compliance checklist for 2018. Please contact Scurich Insurance for assistance or if you have questions about changes that were required in previous years.
PLAN DESIGN CHANGES
Grandfathered Plan Status
A grandfathered plan is one that was already in existence when the ACA was enacted on March 23, 2010. If you make certain changes to your plan that go beyond permitted guidelines, your plan is no longer grandfathered. However, grandfathered status does not automatically expire as of a specific date. A plan may maintain its grandfathered status as long as no prohibited changes are made. Once a plan relinquishes grandfathered status, it cannot be regained and the plan must comply with additional reforms under the ACA.
Contact Scurich Insurance if you have questions about changes you have made, or are considering making, to your plan.
Review your plan’s grandfathered status:
- If you have a grandfathered plan, determine whether it will maintain its grandfathered status for the 2018 plan year. Grandfathered plans are exempt from some of the ACA’s mandates. A grandfathered plan’s status will affect its compliance obligations from year to year.
- If your plan will lose its grandfathered status for 2018, confirm that the plan has all of the additional patient rights and benefits required by the ACA for non-grandfathered plans. This includes, for example, coverage of preventive care without cost-sharing requirements.
- If your plan will keep grandfathered status, continue to provide the Notice of Grandfathered Status in any plan materials provided to participants and beneficiaries that describe the benefits provided under the plan (such as the plan’s summary plan description and open enrollment materials). Model language is available.
Cost-sharing Limits
Effective for plan years beginning on or after Jan. 1, 2014, non-grandfathered health plans are subject to limits on cost sharing for essential health benefits (EHB). The ACA’s overall annual limit on cost sharing (also known as an out-of-pocket maximum) applies for all non-grandfathered group health plans, whether insured or self-insured. Under the ACA, a health plan’s out-of-pocket maximum for EHB may not exceed $7,350 for self-only coverage and $14,700 for family coverage, effective for plan years beginning on or after Jan. 1, 2018.
Health plans with more than one service provider may divide the out-of-pocket maximum across multiple categories of benefits, rather than reconciling claims across multiple service providers. Thus, health plans and issuers may structure a benefit design using separate out-of-pocket maximums for EHB, provided that the combined amount does not exceed the annual out-of-pocket maximum limit for that year. For example, in 2018, a health plan’s self-only coverage may have an out-of-pocket maximum of $6,000 for major medical coverage and $1,350 for pharmaceutical coverage, for a combined out-of-pocket maximum of $7,350.
Beginning with the 2016 plan year, the self-only annual limit on cost sharing applies to each individual, regardless of whether the individual is enrolled in self-only coverage or family coverage. This embeds an individual out-of-pocket maximum in family coverage so that an individual’s cost sharing for essential health benefits cannot exceed the ACA’s out-of-pocket maximum for self-only coverage.
Note that the ACA’s cost-sharing limit is higher than the out-of-pocket maximum for high deductible health plans (HDHPs). In order for a health plan to qualify as an HDHP, the plan must comply with the lower out-of-pocket maximum limit for HDHPs. HHS provided FAQ guidance on how this ACA rule affects HDHPs with family deductibles that are higher than the ACA’s cost-sharing limit for self-only coverage.
According to HHS, an HDHP that has a $10,000 family deductible must apply the annual limitation on cost sharing for self-only coverage ($7,350 in 2018) to each individual in the plan, even if this amount is below the $10,000 family deductible limit. Because the $7,350 self-only maximum limitation on cost sharing exceeds the 2018 minimum annual deductible amount for HDHPs ($2,700), it will not cause a plan to fail to satisfy the requirements for a family HDHP.
Check your plan’s cost-sharing limits:
- Review your plan’s out-of-pocket maximum to make sure it complies with the ACA’s limits for the 2018 plan year ($7,350 for self-only coverage and $14,700 for family coverage).
- If you have an HSA-compatible HDHP, keep in mind that your plan’s out-of-pocket maximum must be lower than the ACA’s limit. For 2018, the out-of-pocket maximum limit for HDHPs is $6,650 for self-only coverage and $13,300 for family coverage.
- If your plan uses multiple service providers to administer benefits, confirm that the plan will coordinate all claims for EHB across the plan’s service providers, or will divide the out-of-pocket maximum across the categories of benefits, with a combined limit that does not exceed the maximum for 2018.
- Confirm that the plan applies the self-only maximum to each individual in the plan, regardless of whether the individual is enrolled in self-only coverage or family coverage.
Health FSA Contributions
Effective for plan years beginning on or after Jan. 1, 2013, an employee’s annual pre-tax salary reduction contributions to a health FSA must be limited to $2,500 (as adjusted for inflation). The $2,500 limit was increased to $2,550 for taxable years beginning in 2015 and 2016, and then increased again to $2,600 for taxable years beginning in 2017. On Oct. 19, 2017, the IRS released Revenue Procedure 2017-58, which increased the FSA dollar limit on employee salary reduction contributions to $2,650 for taxable years beginning in 2018.
The limit does not apply to employer contributions to the health FSA, and does not impact contributions under other employer-provided coverage. For example, employee salary reduction contributions to an FSA for dependent care or adoption care assistance are not affected by the health FSA limit.
Update your health FSA’s contribution limit:
- Confirm that your health FSA will not allow employees to make pre-tax contributions in excess of $2,650 for the 2018 plan year.
- Communicate the health FSA limit to employees as part of the open enrollment process.
SUMMARY OF BENEFITS AND COVERAGE (SBC)
Health plans and health insurance issuers must provide an SBC to applicants and enrollees to help them understand their coverage and make coverage decisions. Plans and issuers must provide the SBC to participants and beneficiaries who enroll or re-enroll during an open enrollment period, as well as to participants and beneficiaries who enroll other than through an open enrollment period (including individuals who are newly eligible for coverage and special enrollees).
The SBC must follow strict formatting requirements. The Departments provided templates and related materials, including instructions and a uniform glossary of coverage terms, for use by plans and issuers. On April 6, 2016, the Departments issued a new template and related materials for the SBC.
- Plans with annual open enrollment periods must start using the new template on the first day of the first open enrollment period that begins on or after April 1, 2017, with respect to coverage for plan or policy years beginning on or after that date.
- Plans without an annual open enrollment period must start using the new template on the first day of the first plan or policy year that begins on or after April 1, 2017.
Begin using the new SBC template:
- Ensure that you are using the new SBC template for the 2018 plan year.
- For self-funded plans, the plan administrator is responsible for creating and providing the SBC. For insured plans, the issuer is required to provide the SBC to the plan sponsor. Both the plan and the issuer are obligated to provide the SBC, although this obligation is satisfied for both parties if either one provides the SBC. If you have an insured plan, confirm whether your health insurance issuer will assume responsibility for providing the SBCs.
HIPAA CERTIFICATION
The ACA includes a requirement for health plans to file a statement with HHS certifying their compliance with the Health Insurance Portability and Accountability Act’s (HIPAA) electronic transaction standards and operating rules. These HIPAA requirements are often referred to as the electronic data interchange (EDI) rules.
However, on Oct. 4, 2017, HHS withdrew its proposed rule in order to re-examine the issues and explore options and alternatives to comply with the HIPAA certification requirement. As a result, group health plan sponsors will not be required to certify their HIPAA compliance until HHS issues new guidance.
Although health plans are not required to certify their HIPAA compliance at this time, there is an enforcement process in place for the EDI rules. Civil monetary penalties and criminal penalties may be imposed on a covered entity that fails to comply with the EDI rules. Thus, health plans and business associates that conduct standard transactions should confirm that they are complying with the EDI rules.
EMPLOYER SHARED RESPONSIBILITY RULES
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Under the ACA’s employer shared responsibility rules, applicable large employers (ALEs) are required to offer affordable, minimum value (MV) health coverage to their full-time employees (and dependent children) or pay a penalty. These employer shared responsibility requirements are also known as the “employer mandate” or “pay or play” rules.
An ALE will be subject to penalties if one or more full-time employees receive a subsidy for purchasing health coverage through an Exchange. An individual may be eligible for an Exchange subsidy either because the ALE:
- Does not offer coverage to that individual; or
- Offers coverage that is “unaffordable” or does not provide “minimum value.”
This checklist will help you evaluate your possible liability for an employer shared responsibility penalty for 2018. Please keep in mind that this summary is a high-level overview of the employer shared responsibility rules. It does not provide an in-depth analysis of how the rules will affect your organization. Please contact Scurich Insurance for more information on these rules and how they may apply to you.
Applicable Large Employer Status
The ACA’s employer shared responsibility rules apply only to ALEs. ALEs are employers with 50 or more full-time employees (including full-time equivalent employees, or FTEs) on business days during the preceding calendar year. Employers determine each year, based on their current number of employees, whether they will be considered an ALE for the following year.
Determine your ALE status for 2018:
- Calculate the number of full-time employees for each calendar month in 2017. A full-time employee is an employee who is employed, on average, at least 30 hours of service per week or 130 hours for the calendar month.
- Calculate the number of FTEs for each calendar month in 2017 by calculating the aggregate number of hours of service (but not more than 120 hours for any employee) for all employees who were not full-time employees for that month and dividing the total hours of service by 120.
- Add the number of full-time employees and FTEs (including fractions) calculated above for each month in 2017. Add up these monthly numbers and divide the sum by 12. Disregard fractions.
- If your result is 50 or more, you are likely an ALE for 2018.
- Keep in mind that there is a special exception for employers with seasonal workers. If your workforce exceeds 50 full-time employees (including FTEs) for 120 days or fewer during the 2017 calendar year, and the employees in excess of 50 who were employed during that time were seasonal workers, you will not be an ALE for 2018.
Offering Coverage to Full-time Employees
To correctly offer coverage to full-time employees, ALEs must determine which employees are full-time employees under the employer shared responsibility rule definition. A full-time employee is an employee who was employed, on average, at least 30 hours of service per week (or 130 hours of service in a calendar month).
The IRS provided two methods for determining full-time employee status for purposes of offering coverage – the monthly measurement method and the look-back measurement method.
MONTHLY MEASUREMENT METHOD
Involves a month-to-month analysis where full-time employees are identified based on their hours of service for each month. This method is not based on averaging hours of service over a prior measurement method. Month-to-month measuring may cause practical difficulties for employers that have employees with varying hours or employment schedules, and could result in employees moving in and out of employer coverage on a monthly basis.
LOOK-BACK MEASUREMENT METHOD
An optional safe harbor method for determining full-time status that can provide greater predictability for determining full-time status. The details of this method are based on whether the employees are ongoing or new, and whether new employees are expected to work full-time or are variable, seasonal or part-time.
This method involves a measurement period for counting hours of service, an administrative period that allows time for enrollment and disenrollment, and a stability period when coverage may need to be provided, depending on an employee’s average hours of service during the measurement period.
If an employer meets the requirements of the safe harbor, it will not be liable for penalties for employees who work full-time during the stability period, if they did not work full-time hours during the measurement period.
Determine your full-time employees:
- Use the monthly measurement method or the look-back measurement method to confirm that health coverage will be offered to all full-time employees (and dependent children). If you have employees with varying hours, the look-back measurement method may be the best fit for you.
- To use the look-back measurement method, you will need to select your measurement, administrative and stability periods. Please contact Scurich Insurance for more information.
Applicable Penalties
An ALE is only liable for a penalty under the employer shared responsibility rules if at least one full-time employee receives a subsidy for coverage purchased through an Exchange. Employees who are offered health coverage that is affordable and provides MV are generally not eligible for these Exchange subsidies. Depending on the circumstances, one of two penalties may apply under the employer shared responsibility rules—the 4980H(a) penalty or the 4980H(b) penalty.
The 4980H(a) Penalty—Penalty for ALEs Not Offering Coverage
Under Section 4980H(a), an ALE will be subject to a penalty if it does not offer coverage to “substantially all” full-time employees (and dependents) and any one of its full-time employees receives a premium tax credit or cost-sharing reduction toward his or her Exchange plan. The 4980H(a) penalty will not apply to an ALE that intends to offer coverage to all of its full-time employees, but that fails to offer coverage to a few of these employees, regardless of whether the failure to offer coverage was inadvertent.
An ALE will satisfy the requirement to offer minimum essential coverage to “substantially all” of its full-time employees and their dependents if it offers coverage to at least 95 percent—or fails to offer coverage to no more than 5 percent (or, if greater, five)—of its full-time employees (and dependents). According to the IRS, the alternative margin of five full-time employees is designed to accommodate relatively small ALEs, because a failure to offer coverage to a handful of full-time employees might exceed 5 percent of the ALE’s full-time employees.
Under the ACA, the monthly penalty assessed on ALEs that do not offer coverage to substantially all full-time employees and their dependents is equal to the ALE’s number of full-time employees (minus 30) X 1/12 of $2,000 (as adjusted), for any applicable month. After 2014, the $2,000 amount is indexed for the calendar year, as follows:
- $2,080 for 2015
- $2,160 for 2016
- $2,260 for 2017
The 4980H(b) Penalty—Penalty for ALEs Offering Coverage
ALEs that do offer coverage to substantially all full-time employees (and dependents) may still be subject to penalties if at least one full-time employee obtains a subsidy through an Exchange because:
- The ALE did not offer coverage to all full-time employees; or
- The ALE’s coverage is unaffordable or does not provide minimum value.
The monthly penalty assessed on an ALE for each full-time employee who receives a subsidy is 1/12 of $3,000 (as adjusted) for any applicable month. However, the total penalty for an ALE is limited to the 4980(a) penalty amount. After 2014, the $3,000 amount is indexed as follows:
- $3,120 for 2015
- $3,240 for 2016
- $3,390 for 2017
Affordability of Coverage
Under the ACA, an ALE’s health coverage is considered affordable if the employee’s required contribution to the plan does not exceed 9.5 percent of the employee’s household income for the taxable year (as adjusted each year). The adjusted percentage is 9.56 percent for 2018.
This is the first time since these rules were implemented that the affordability contribution percentages have been reduced.
As a result, some employers may need to reduce their employee contributions for 2018 to meet the adjusted percentage.
“Household income” means the modified adjusted gross income of the employee and any members of the employee’s family. Because an employer generally will not know an employee’s household income, the IRS provided three affordability safe harbors that ALEs may use to determine affordability based on information that is available to them. These safe harbors allow an ALE to measure affordability based on the employee’s Form W-2 wages, the employee’s rate of pay or the federal poverty level for a single individual. ALEs using an affordability safe harbor may rely on the adjusted affordability contribution percentages.
Minimum Value
Under the ACA, a plan provides MV if the plan’s share of total allowed costs of benefits provided under the plan is at least 60 percent of those costs. Three approaches may be used for determining MV: a Minimum Value (MV) Calculator, design-based safe harbor checklists or actuarial certification. In addition, any plan in the small group market that meets any of the “metal levels” of coverage (that is, bronze, silver, gold or platinum) provides MV.
In addition, plans that do not provide inpatient hospitalization or physician services (referred to as non-hospital/non-physician services plans) do not provide MV. An employer may not use the MV Calculator (or any actuarial certification or valuation) to demonstrate that a non-hospital/non-physician services plan provides MV. As a result, a non-hospital/non-physician services plan should not be adopted for the 2015 plan year or beyond.
Calculate potential penalties for 2017 and/or 2018:
- Review the cost of your health plan coverage to determine whether it’s affordable for your employees by using one or more of the affordability safe harbors.
- Determine whether the plan provides MV by using one of the four available methods.
- Calculate any penalties that may apply under these rules using the formulas above.
REPORTING OF COVERAGE
The ACA requires ALEs to report information to the IRS and to their full-time employees regarding the employer-sponsored health coverage they offer. The IRS will use the information that ALEs report to verify employer-sponsored coverage and administer the employer shared responsibility provisions. This reporting requirement is found in Code Section 6056.
The ACA also requires every health insurance issuer, sponsor of a self-insured health plan, government agency that administers government-sponsored health insurance programs and any other entity that provides MEC to file an annual return with the IRS reporting information for each individual who is provided with this coverage. Related statements must also be provided to individuals. This reporting requirement is found in Code Section 6055.
Both of these reporting requirements took effect in 2015. Returns are due in early 2018 for health plan coverage offered or provided in 2017. Returns generally must be filed with the IRS by Feb. 28 (or March 31, if filed electronically) of the year after the calendar year to which the returns relate. For the 2017 calendar year, returns must be filed by Feb. 28, 2018, or April 2, 2018 (March 31, 2018, being a Sunday), if filed electronically. Written statements generally must be provided to employees no later than Jan. 31 of the year following the calendar year in which coverage was provided. For the 2017 calendar year, individual statements must be furnished by Jan. 31, 2018.
ALEs with self-funded plans are required to comply with both reporting obligations, while ALEs with insured plans will only need to comply with Section 6056. To simplify the reporting process, the IRS allows ALEs with self-insured plans to use a single combined form for reporting the information required under both Section 6055 and 6056.
ALEs that sponsor self-insured plans
Must report:
- Information under Section 6055 about MEC provided; and
- Information under Section 6056 about offers of health coverage.
ALEs that sponsor insured plans
Must report information under Section 6056. These employers are not required to report under Section 6055.
Non-ALEs that sponsor self-insured plans
Must report information under Section 6055. These employers are not required to report under Section 6056.
Non-ALEs that sponsor insured plans
These employers are not required to report under either Section 6055 or Section 6056.
Forms Used for Reporting
Under both Sections 6055 and 6056, each reporting entity must file all of the following with the IRS:
- A separate statement for each individual; and
- A single transmittal form for all of the returns filed for a given calendar year.
Under Section 6055, reporting entities will generally file Forms 1094-B (a transmittal) and 1095-B (an information return). Under Section 6056, entities will file Forms 1094-C (a transmittal) and 1095-C (an information return) for each full-time employee for any month. Entities that are reporting under both Sections 6055 and 6056 will file using a combined reporting method, on Form 1094-C and Form 1095-C.
| REQUIREMENT |
FILE WITH THE IRS: |
FURNISH TO EACH INDIVIDUAL: |
| Section 6055 |
- One Form 1094-B; and
- A separate Form 1095-B for each responsible individual
|
A copy of his or her Form 1095-B |
| Section 6056 |
- One Form 1094-C; and
- A separate Form 1095-C for each full-time employee
|
A copy of his or her Form 1095-C |
| Both Section 6055 & 6056 |
- One Form 1094-C; and
- A separate Form 1095-C for each full-time employee and each responsible individual
|
A copy of his or her Form 1095-C |
Electronic Reporting
Any reporting entity that is required to file at least 250 returns under Section 6055 or Section 6056 must file electronically. The 250-or-more requirement applies separately to each type of return and separately to each type of corrected return. Entities filing fewer than 250 returns during the calendar year may choose to file in paper form, but are permitted (and encouraged) to file electronically. Electronic filing will be done using the ACA Information Returns (AIR) Program. More information on the AIR Program is available on the IRS website.
Individual statements may also be furnished electronically if certain notice, consent and hardware and software requirements are met (similar to the process currently in place for the electronic furnishing of employees’ Forms W-2).
Penalties
A reporting entity that fails to comply with the Section 6055 or Section 6056 reporting requirements may be subject to the general reporting penalties for failure to file correct information returns (under Code Section 6721) and failure to furnish correct payee statements (under Code Section 6722).
Penalties may be waived if the failure is due to reasonable cause and not to willful neglect, or may be reduced if the failure is corrected within a certain period of time. Also, lower annual maximums apply for reporting entities that have average annual gross receipts of up to $5 million for the three most recent taxable years. The penalty amounts for failures related to returns and statements required to be filed or furnished in 2018 are as follows:
| PENALTY TYPE
|
PER VIOLATION |
ANNUAL MAXIMUM |
ANNUAL MAXIMUM FOR EMPLOYERS WITH ≤$5 MILLION IN GROSS RECEIPTS |
| General |
$260 |
$3,218,500 |
$1,072,500 |
| Corrected within 30 days |
$50 |
$536,000 |
$187,500 |
| Corrected after 30 days, but before Aug. 1 |
$100 |
$1,609,000 |
$536,000 |
| Intentional disregard |
$530* |
None |
N/A |
*For failures due to intentional disregard, the penalty is equal to the greater of either the listed penalty amount or 10 percent of the aggregate amount of the items required to be reported correctly.
Prepare for Health Plan Reporting:
- Determine which reporting requirements apply to you and your health plans.
- Determine the information you will need for reporting and coordinate internal and external resources to help compile the required data.
- Complete the appropriate forms. Furnish statements to individuals on or before Jan. 31, 2018, and file returns with the IRS on or before Feb. 28, 2018 (April 2, 2018, if filing electronically).
EMPLOYEE NOTICE OF EXCHANGE
Employers are required to provide all new hires with a written notice about the ACA’s health insurance Exchanges. This notice must be provided at the time of hiring. In general, the notice must:
- Inform employees about the existence of the Exchange and describe the services provided;
- Explain how employees may be eligible for a premium tax credit or a cost-sharing reduction if the employer’s plan does not meet certain requirements; and
- Inform employees that if they purchase coverage through the Exchange, they may lose any employer contribution toward the cost of employer-provided coverage, and that all or a portion of the employer contribution to employer-provided coverage may be excludable for federal income tax purposes.
The DOL provided model Exchange notices for employers to use, which will require some customization. The notice may be provided by first-class mail, or may be provided electronically if the requirements of the DOL’s electronic disclosure safe harbor are met.
Ensure that the Exchange notice is provided to all new hires at the time of hiring:
- Customize the appropriate model Exchange notice.
- Confirm that the notice has been provided to all current employees.
- Prepare to provide the customized notice to all new employees when hired.
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The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) recently made changes to the system for determining employers’ experience mods. Because experience mods are one of the largest factors when determining your workers’ compensation premiums, it’s important to know the details of these changes, and what they mean for your business.
Split Point Changes
The largest change the WCIRB made was to the split point, which had not been changed since 2010:
- Losses in excess of the split point will now be ignored during the calculation of an employer’s experience mod. These losses were previously considered, but did not carry as much weight as losses below the split point. Excess losses focus on the severity of injuries and illnesses in the workplace, a focus that will no longer be considered under the new changes to the rating system.
- Losses up to the split point will still count fully in the calculation of an employer’s experience mod. These primary losses focus on the frequency of injuries in the workplace, as they are fully weighted during the calculation of an experience mod. Because the WCIRB chose to focus on primary losses, the agency believes that employers will be encouraged to develop safe workplaces and reduce the occurrence of injuries and illnesses.
In addition to the focus on primary losses, the split point will now vary between approximately $4,500 and $75,000, based on the size of a business, instead of the previous $7,000 fixed split point. There will be approximately 90 threshold split points. The WCIRB believes that a varying split point will benefit smaller employers, who could previously expect abnormally high experience mods after a single, catastrophically large loss. Additionally, other states that use a fixed split point typically set them at $15,000 or higher, which the WCIRB believes is unfairly high for many small businesses.
For example, under the old split point system, a small employer with a single $60,000 loss would have a vastly different experience mod than a larger employer with 10 $6,000 losses. Under the new system, the WCIRB hopes to encourage safety at all times instead of punishing employers for abnormally high and rare losses.
What the Change Means for You
Although the varying split point can now reach extreme heights, the WCIRB believes that the elimination of excess loss consideration will cause premiums to remain flat. However, it’s possible that you could see your split point—and consequentially, your premiums—rise if you increase your workforce substantially.
The most important factor when working to lower your workers’ compensation premiums is to reduce the frequency of injuries and illnesses in the workplace—especially now that the calculation of your experience mod will be determined almost entirely by primary losses. For help keeping your workplace safe and responding to injuries and illnesses at your business, contact us at 831-661-5697 today.
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OSHA’s final rule on electronic reporting requires certain employers to submit data from their injury and illness records electronically so it can be posted on the agency’s website. Because the rule is an extra requirement on top of existing OSHA recordkeeping standards, affected employers need to be ready to comply with the rule before the proposed Dec. 1, 2017, deadline.
Other News and Tips
Preparing for OSHA Inspections
If an unannounced OSHA inspection finds violations at your business, you may have to pay thousands in fines and watch as your reputation plummets. Fortunately, OSHA inspections generally follow an established procedure that you and your staff can prepare for.
When an OSHA compliance officer arrives at your business, it’s important to check his or her credentials and then determine if you’ll give consent to the inspection. Although you can refuse an inspection or give only partial consent, the compliance officer will take note of this and OSHA may take further action.
Once an inspection begins, the goal should be to determine its purpose and set any ground rules. You should also be prepared to provide proof that your business is in compliance with OSHA standards. During the walkaround process, be sure to take notes of what the inspector documents so you can review them later.
OSHA inspections can be stressful, even when your business is in full compliance. Scurich Insurance can provide you with our inspection guide, “Be Prepared for an OSHA Inspection,” and help your business impress OSHA compliance officers.
OSHA Removes Employee Fatalities from Home Page
Although OSHA used to include a URL link on its home page that would direct viewers to a list of employee fatalities, the agency recently moved the link to a separate page on its website.
According to a spokesperson from the Department of Labor, the link was moved in order to increase the accuracy of workplace data, as previous listings included fatalities that were outside OSHA’s jurisdiction. However, OSHA will keep the list of employee fatalities on its website and continue to review data from employers.
Although the electronic reporting rule initially required certain employers to start submitting their required information by July 1, 2017, OSHA’s Injury Tracking Application website wasn’t ready to receive electronic reports in time, and OSHA proposed Dec. 1, 2017, as the new deadline. The rule doesn’t change an employer’s requirements to complete and retain regular injury and illness records, but some employers will now have additional obligations. Here are the requirements for the rule:
- Establishments with 250 or more employees that are required to keep injury and illness records must electronically submit the following forms:
- OSHA Form 300: Log of Work-Related Injuries and Illnesses
- OSHA Form 300A: Summary of Work-Related Injuries and Illnesses
- OSHA Form 301: Injury and Illnesses Incident Report
- Establishments with 20 to 249 employees that work in industries with historically high rates of occupational injuries and illnesses must electronically submit information from OSHA Form 300A.
The final reporting requirements will be phased in over two years. After the initial Dec. 1, 2017, deadline, establishments with 250 or more employees must submit information from OSHA Forms 300, 300A and 301 by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
For more help preparing for this new rule, call us at 831-661-5697 and ask to see our comprehensive Compliance Overview on OSHA’s electronic reporting rule.
New Silica Rule Enforcement Begins
A new OSHA rule on respirable crystalline silica will require employers to limit their employees’ exposure to silica hazards and provide medical exams to monitor highly exposed employees. The rule is scheduled to come into effect on June 23, 2018; however, OSHA began enforcement of the new rule in the construction industry on Sept. 23, 2017.
Under the new rule, employers must reduce the permissible exposure limit (PEL) for respirable silica to 50 micrograms per cubic meter of air (50 µg/m3). The rule also requires employers to take the following steps:
- Establish engineering controls to limit employees’ exposure to the new PEL.
- Provide employees with respirators when engineering controls alone do not provide enough protection.
- Establish a written silica exposure control plan.
- Provide medical exams to employees who are exposed to levels of respirable silica at or above the new PEL for 30 or more days a year.
To see more information on the respirable silica rule, and to see specifics about the rule’s application in the construction industry, visit OSHA’s website.
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The Insurance Research Council reports that an estimated 1 in 7 drivers in the United States are currently uninsured. As a result, many car insurance companies across the nation offer specific coverage in the event that you get into an accident with an uninsured driver, such as uninsured motorist (UM) coverage and underinsured motorist (UIM) coverage.
UM coverage applies if the uninsured driver was at fault in the accident or if you were the victim of a hit-and-run accident. UIM coverage applies if the other driver is at fault and lacks a high enough level of coverage to cover the cost of the accident. This means that if the underinsured driver’s policy limit is reached before the cost is covered, your insurance company would pay the remainder of the costs until your coverage limit is reached.
While UM/UIM coverage can be helpful, often times the level of coverage isn’t enough to cover the costs of the accident. Luckily, several states allow you to “stack” your UM or UIM coverage. Read on to learn the differences between stacked and unstacked UM/UIM coverage.
Unstacked Coverage
If you have unstacked UM/UIM coverage, your level of coverage is the limit on your policy. For instance, if you have a set limit of $20,000, that is the maximum amount of coverage you will receive after an accident with an uninsured or underinsured driver. Unstacked coverage is more common than stacked coverage, seeing as it is your only option if you insure just one car.
Stacked Coverage
If you insure multiple vehicles and your state allows stacking, you are permitted to increase your level of UM/UIM coverage. You can utilize stacked coverage within one policy, or across policies.
Stacking your coverage within one policy means you are combining your coverage limits for multiple vehicles on a singular policy. For example, if you own two cars on one insurance policy and your UM/UIM limit is $20,000, you can combine your coverage limits for a total of $40,000.
Using stacked coverage across policies means you are combining your coverage limits between separate policies for a singular claim. For example, if you own two vehicles, each with separate policies and your UM/UIM limit is $25,000, you could file a claim using both policies, therefore using up to $50,000.
The Advantages and Disadvantages
There are both benefits and drawbacks to utilizing stacked UM/UIM coverage. Stacking can potentially raise the amount of coverage you can use in case of an accident with an uninsured or underinsured driver, and lets you increase your UM/UIM limits without increasing your liability coverage.
However, if you have stacked coverage, you may have higher rates, seeing as car insurance companies have to offset the risk of costly reimbursement.
In addition, while some states lack laws for stacked coverage, some states either forbid it or only allow it in specific circumstances. Aside from state laws, some car insurance companies have certain policies that disallow stacked coverage. Be sure to contact your car insurance company to discuss your options with stacked UM/UIM coverage.
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