Questions for your health care town hall: Secs. 411 and 412

For the end of the week, I’m going to show the effects of H.R. 3200′s provisions for health care coverage that is placed on employers large and small. These show up in Sections 411 and 412 of the Act. Here’s the text via THOMAS. (Please note, I often edit these to eliminate some naming and exception language that is routine. So here, for example, I’ll skip all the rules they need to deal with the railroad industry.)

SEC. 411. ELECTION TO SATISFY HEALTH COVERAGE PARTICIPATION REQUIREMENTS.

(a) In General- Chapter 43 of the Internal Revenue Code of 1986 is amended by adding at the end the following new section:
`SEC. 4980H. ELECTION WITH RESPECT TO HEALTH COVERAGE PARTICIPATION REQUIREMENTS.

`(a) Election of Employer Responsibility To Provide Health Coverage-
`(1) IN GENERAL- Subsection (b) shall apply to any employer with respect to whom an election under paragraph (2) is in effect.
`(2) TIME AND MANNER- An employer may make an election under this paragraph at such time and in such form and manner as the Secretary may prescribe.
`(3) AFFILIATED GROUPS- In the case of any employer which is part of a group of employers who are treated as a single employer under subsection (b), (c), (m), or (o) of section 414, the election under paragraph (2) shall be made by such person as the Secretary may provide. Any such election, once made, shall apply to all members of such group.
`(4) SEPARATE ELECTIONS- Under regulations prescribed by the Secretary, separate elections may be made under paragraph (2) with respect to–
`(A) separate lines of business, and
`(B) full-time employees and employees who are not full-time employees.
`(5) TERMINATION OF ELECTION IN CASES OF SUBSTANTIAL NONCOMPLIANCE- The Secretary may terminate the election of any employer under paragraph (2) if the Secretary (in coordination with the Health Choices Commissioner) determines that such employer is in substantial noncompliance with the health coverage participation requirements.
`(b) Excise Tax With Respect to Failure To Meet Health Coverage Participation Requirements-
`(1) IN GENERAL- In the case of any employer who fails (during any period with respect to which the election under subsection (a) is in effect) to satisfy the health coverage participation requirements with respect to any employee to whom such election applies, there is hereby imposed on each such failure with respect to each such employee a tax of $100 for each day in the period beginning on the date such failure first occurs and ending on the date such failure is corrected.
`(2) LIMITATIONS ON AMOUNT OF TAX-
`(A) TAX NOT TO APPLY WHERE FAILURE NOT DISCOVERED EXERCISING REASONABLE DILIGENCE- No tax shall be imposed by paragraph (1) on any failure during any period for which it is established to the satisfaction of the Secretary that the employer neither knew, nor exercising reasonable diligence would have known, that such failure existed.
`(B) TAX NOT TO APPLY TO FAILURES CORRECTED WITHIN 30 DAYS- No tax shall be imposed by paragraph (1) on any failure if–
`(i) such failure was due to reasonable cause and not to willful neglect, and
`(ii) such failure is corrected during the 30-day period beginning on the 1st date that the employer knew, or exercising reasonable diligence would have known, that such failure existed.
`(C) OVERALL LIMITATION FOR UNINTENTIONAL FAILURES- In the case of failures which are due to reasonable cause and not to willful neglect, the tax imposed by subsection (a) for failures during the taxable year of the employer shall not exceed the amount equal to the lesser of–
`(i) 10 percent of the aggregate amount paid or incurred by the employer (or predecessor employer) during the preceding taxable year for employment-based health plans, or
`(ii) $500,000.

SEC. 412. RESPONSIBILITIES OF NONELECTING EMPLOYERS.

(a) In General- Section 3111 of the Internal Revenue Code of 1986 is amended by redesignating subsection (c) as subsection (d) and by inserting after subsection (b) the following new subsection:
`(c) Employers Electing to Not Provide Health Benefits-
`(1) IN GENERAL- In addition to other taxes, there is hereby imposed on every nonelecting employer an excise tax, with respect to having individuals in his employ, equal to 8 percent of the wages (as defined in section 3121(a)) paid by him with respect to employment (as defined in section 3121(b)).
`(2) SPECIAL RULES FOR SMALL EMPLOYERS-
`(A) IN GENERAL- In the case of any employer who is small employer for any calendar year, paragraph (1) shall be applied by substituting the applicable percentage determined in accordance with the following table for `8 percent’:
———————————————————————————————————————
———————————————————————————————————————
`If the annual payroll of such employer for the preceding calendar year: The applicable percentage is:
Does not exceed $250,000 0 percent
Exceeds $250,000, but does not exceed $300,000 2 percent
Exceeds $300,000, but does not exceed $350,000 4 percent
Exceeds $350,000, but does not exceed $400,000 6 percent
———————————————————————————————————————
`(B) SMALL EMPLOYER- For purposes of this paragraph, the term `small employer’ means any employer for any calendar year if the annual payroll of such employer for the preceding calendar year does not exceed $400,000.
`(C) ANNUAL PAYROLL- For purposes of this paragraph, the term `annual payroll’ means, with respect to any employer for any calendar year, the aggregate wages (as defined in section 3121(a)) paid by him with respect to employment (as defined in section 3121(b)) during such calendar year.
`(3) NONELECTING EMPLOYER- For purposes of paragraph (1), the term `nonelecting employer’ means any employer for any period with respect to which such employer does not have an election under section 4980H(a) in effect.
`(4) SPECIAL RULE FOR SEPARATE ELECTIONS- In the case of an employer who makes a separate election described in section 4980H(a)(4) for any period, paragraph (1) shall be applied for such period by taking into account only the wages paid to employees who are not subject to such election.

My understanding is that the table for small employers above was changed in committee, and I don’t have the new language. One question you could ask is when the amended bill from Energy and Commerce will be posted. The section proposes an addition to Title 26, Chapter 43 of the US Code, which is part of the Internal Revenue Code of 1986, link provided for reference.

So read this and find some questions. Here would be mine:

1. The bill imposes a very stiff fine on employers for noncompliance of $100/day per employee if it is determined they are not in compliance with providing qualifying coverage, but a much smaller fine if it’s unintentional. The burden of proof appears to be on the employer if it’s determined the employer was not “employing reasonable diligence”. Who makes that determination of reasonable diligence? If someone is determined to be intentionally in violation, how could an employer appeal the fine?
2. Likewise, the Commissioner of the Health Choices Administration is permitted to “terminate the election of any employer” to provide a plan. Does this place all of those employees in the government exchange? Again, how does an employer or its employees appeal this decision and seek to provide their own remedy?
3. Can you explain the exceptions in the calculation of the wage base on which I pay the 8% (or less, for small employers) if I drop my insurance and put my employees on the government plan? (There are several, see subsection (b) in Section 412, you can refer to this for the calculation of wages that the section modifies.) If you find a legislator that can actually explain that, give them a gold star and point them out. They must have tried to read the bill.

I will continue to work over the weekend on other sections. I invite you to print these and ask them at town halls. Don’t shout, but be sure to show up early, because it sounds like some people are hogging seats.

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