Relief on Health Care Nondiscrimination -- A Visit from Santa Claus

IRS Notice 2011-1 brings us nothing but good news. The IRS has said that compliance with the nondiscrimination rules of PPACA Section 2716 should not be enforced until after the IRS has issued regulations or other administrative guidance on the topic. In the notice, the IRS specifically asks for public comments on these issues:

• The basis on which the determination of what constitutes non-discriminatory benefits under § 105(h)(4) should be made and what is included in the term “benefits.”
• The suggestion made in previous comments that the Departments have the authority to provide for an alternative method of compliance with § 2716 that would involve only an availability of coverage test.
• The application of § 2716 to insured group health plans beginning in 2014 when the health insurance exchanges become operational and the employer responsibility provisions (§ 4980H of the Code), the premium tax credit (§ 36B of the Code), and the individual responsibility provisions (§ 5000A of the Code) and related Affordable Care Act provisions are effective.
• The suggestion in previous comments that the nondiscriminatory classification provision in § 105(h)(3)(A)(iii) could be used as a basis to permit an insured health care plan to use a highly compensated employee definition in § 414(q) of the Code for purposes of determining the plan’s nondiscriminatory classification.
• The suggestion in previous comments that the nondiscrimination standards should be applied separately to employers sponsoring insured group health plans in distinct geographic locations and on whether application of the standards on a geographic basis should be permissive or mandatory.
• The suggestion in previous comments that the guidance should provide for “safe harbor” plan designs. Specifically, comments are requested on potential safe and unsafe harbor designs that are consistent with the substantive requirements of § 105(h).
• Whether employers should be permitted to aggregate different, but substantially similar, coverage options for purposes of § 2716 and, if so, the basis upon which a “substantially similar” determination could be made.
• The application of the nondiscrimination rules to “expatriate” and “inpatriate” coverage.
• The application of the nondiscrimination rules to multiple employer plans.
• The suggestion in previous comments that coverage provided to a "highly compensated individual" (as defined in § 105(h)(5)) on an after-tax basis should be disregarded in applying § 2716.
• The treatment of employees who voluntarily waive employer coverage in favor of other coverage.
• Potential transition rules following a merger, acquisition, or other corporate transaction.
• The application of the sanctions for noncompliance with § 2716.

Comments must be submitted by March 11. You can read the notice for yourself including the instructions on how to comment here: http://www.irs.gov/pub/irs-drop/n-11-01.pdf

Experienced readers may find an analogue here to the Tax Reform Act of 1986, the last time that Congress was good enough to give us new, sweeping nondiscrimination requirements. You may recall that the Section 89 regulations were so bad that Congress felt compelled to repeal that section which actually had some similarity to Section 2716 of PPACA. And, on the retirement side, it took 7 years to get final regulations under 401(a)(4) (after a false start for earlier regulations that made no sense).

So, don't panic. You could be retired before you need to understand this stuff.