Tuesday, September 17, 2013

What if They Gave an Obamacare and Nobody Came--Part 5

Just when you think you know what you need to do to comply with Obamcare, they change the rules again.  PPACA requires every employer subject to the jurisdiction of the Department of Labor to provide notice of the opening of the exchanges by March 2013.  That date was moved back to October 1.

Many practitioners, including myself, believed that even though there was no penalty stated in the notice requirement that PPACA's general $100 per day penalty applies.

The Department of Labor has now announced that employers "should" give the required notice but face no penalty for failing to do so.  Employers can rest a bit easier, I suppose, but in my view I'd give the notice anyway.  Here's why.

The Society for Human Resource Management (SHRM) has a good explanation of the notice requirement and the latest developments.  SHRM quotes Keith McMurdy of Fox, Rothschild cautioning against employers becoming law in the face of law enforcement.  He points out the obvious reality that statutes and regulations have the force of law, government blog entries do not.  Given that employers can send the notices with relatively little effort, they can be sure to be in compliance if they send them.

If employers rely on the Department of Labor FAQ statement, they run the risk of getting in trouble for failing to provide the notices.  What if the government changes its mind later?  Maybe one could argue some kind of reliance or estoppel principle would prevent enforcement, but there's no way to be sure that argument will be win.  The surest course is to provide the notice to the employees.

Model notices can be found at the SHRM link above as well as at the Department of Labor link above.

Now for Today's Obamacare headlines:

Rightwing Rants

Obamacare, Medicaid and Poor Seniors.

Young people will get smaller exchange subsidies than expected.

Obamacare likely to flop.

Unions turn on Obamacare.

Medical device tax causes serious harm.

Leftwing Cheerleading

Poor people will suffer in states without Medicaid expansion.

HHS claims to save $1.2B for policyholders.

Georgia obstructs uninsured from market.

Hard News

Leak of 2400 people's records in Minnesota.

Obamacare brings out scammers.

Obamacare courtroom battles continue.

Contraception and abortion mandate reaches Supreme Court.

Should we be concerned about Obamacare delays?

Arizona exchanges explained.

October 1 is a soft launch.

For Industry Insiders

Employer notice regarding exchanges may be required under ERISA so do them anyway.

White House rejects union requests for exemption.

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