The Affordable Care Act—Countdown To Compliance For Employers, Week 9: Misunderstanding 'Offer[s] Of Coverage On Behalf Of Another Entity'

Applicable large employers faced with the prospect of complying with the Affordable Care Act's employer shared responsibility rules must grapple with and understand what is means to make an offer of minimum essential coverage under an eligible employer-sponsored [group health] plan to their full-time employees. Final regulations implementing these rules determine an individual's status as an "employee" by applying the "common law" standard, the contours of which were examined in a previous post. Identifying an employer's common law employees in a two-party arrangement is a simple matter. But this is not always the case in three-party arrangements (i.e., those in which workers are hired from or through commercial staffing firms or professional employer organizations). Three-party arrangements invite the question—whose employee is it? Where the Act's employer shared responsibility rules are concerned, the answer to that question tells us which entity must make the requisite offer of coverage when assessing exposure for assessable payments.

The final regulations provide a special rule governing outsourced employees or "offers of coverage on behalf of other entities." This rule is welcome to be sure, but it also appears to be widely misunderstood, systematically over-utilized, and in a few cases subject to interpretations that (seem to us, anyway) stray pretty far from the text.

Background

Recognizing the unique challenges posed by three-party employment arrangements, the preamble to the final regulations explains the problem and introduces the regulatory solution as follows (79 Fed. Reg. p. 8,566 (Feb. 12, 2014)):

"[I]f certain conditions are met, an offer of coverage to an employee performing services for an employer that is a client of a professional employer organization or other staffing firm (in the typical case in which the professional employer organization or staffing firm is not the common law employer of the individual) . . . made by the staffing firm on behalf of the client employer under a plan established or maintained by the staffing firm, is treated as an offer of coverage made by the client employer for purposes of section 4980H. For this purpose, an offer of coverage is treated as made on behalf of a client employer only if the fee the client employer would pay to the staffing firm for an employee enrolled in health coverage under the plan is higher than the fee the client employer would pay to the staffing firm for the same...