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Hearsay

Spring 2014, Volume XVI, No. 3

Welcome to the Spring 2014 edition of Hearsay, a quarterly newsletter dedicated to publishing the work of Minnesota’s new lawyers.  In this issue you will find an article describing the new practice areas and opportunities that are a result of the Affordable Care Act.  If you are interested in submitting to a future edition of Hearsay, please contact Joe Bourne or Jeff Mulder.


Notes From the Chair

By Margaret Jennings Meier

It's a bittersweet moment sitting down to write my final Note from the Chair. I've enjoyed my year in this role working alongside tireless, talented new lawyers. It's been an amazing experience to see the fruits of our labor benefit our members, including the recent New Lawyers Leadership  Conference which was a huge success with over 100 attendees gaining practical knowledge and insight. If the growth in my own network is any indication, involvement in the NLS is invaluable as we all work to build our networks and prepare for our careers' future.

Speaking of the future, our annual election for new officers is happening May 8th. Good luck to the new officers in all they have planned. They'll be leading a great organization!

Thank you to everyone for a great year. Keep making connections and building your personal brand and skills. Minnesota is a great state in which to practice law and you're all making it greater.


Overview of New Practice Opportunities due to Obamacare

The Affordable Care Act, more commonly known as Obamacare, is creating new business for attorneys.  Insight into Obamacare’s provisions will help attorneys start or expand their practice and land new business in this evolving area of law.  Here is an overview of areas where Obamacare is creating new opportunities for attorneys:

Employment Law

1.)    Payroll, Taxes and Fees

Obamacare requires employers to report new information and collect new taxes.  Attorneys are needed to implement these changes and represent employers who have not implemented the changes correctly. 

Some of the reports and taxes include the 0.90% Medicare Tax,[1] the Patient-Centered Outcome Research Fee,[2] the Transition Reinsurance Fee,[3] and Employer Reporting of Minimum Essential Coverage.[4]

2.)    Whistleblower Protections

Obamacare amended the Fair Labor Standards Act (FLSA) and created new provisions for employers.  An employer may not take adverse action against an employee if the employee helps in the investigation and reporting of a violation of Title I of Obamacare.  In addition, an employer may not discharge or in any matter retaliate against an employee because she received a tax credit or cost sharing assistance through MNsure.[5]

3.)    Workforce Classifications

Businesses need to determine the status of their employees in order to sort out healthcare offerings.  This includes full-time, part-time, seasonal, and contractor workers.  Correctly identifying these employees is important because misclassifications can be costly to an employer.  Attorneys are needed throughout the classification process and to protect the business in the event of misclassifications.   

Healthcare Provider Compliance

Title VI of Obamacare, relating to transparency and program integrity, is a tool for government agencies to regulate the healthcare industry.  The main enforcement agency is the Department of Health and Human Services (HHS).  Attorneys are needed to both enforce and defend against enforcement actions.  Actions will come about from the reporting of overpayments,[6] use of the new Stark Law Self Disclosure Protocol,[7] and “transparency reporting” regarding life science business relationships.[8]

Tax Law

1.)    Individuals/Families 

The Internal Revenue Service (IRS) is in charge of collecting the penalties under Obamacare.  Penalties for tax year 2014 will be collected when taxes are filed in early 2015.  Obamacare limits the IRS’s normal enforcement power.  By law, if you do not pay your federal income tax, the IRS can seize your assets and garnish your wages.  Obamacare forbids these procedures for collecting the Obamacare penalty tax.  Currently, the only way the IRS can collect an unpaid penalty tax is to withhold a tax refund.  This may elicit some creative filing schemes from taxpayers.  The tax return is also the method for claiming an exemption or hardship in order to avoid a tax penalty.  Attorneys are needed and will be needed to litigate interpretations of the law in these areas. 

2.)    Businesses

Businesses with more than 50 employees are required to provide health insurance to employees (implementation dates and regulations vary based on the size of the employer.)  Businesses that are not in compliance will face tax penalties.  Attorneys are needed to advise businesses on how to avoid the penalties as well as litigate the enforcement of the penalties. 

Family Law

Obamacare requires almost everyone to obtain health insurance or face a penalty.  This creates new headaches and opportunities for family law attorneys.  In family law cases, issues such as dependent benefits, cost-sharing and tax benefit sharing are important to the clients.  Obamacare will have a direct impact on these issues.  Obamacare must be taken into account to maximize the benefit to families.  Also, some existing family court support orders were crafted without Obamacare in mind.  This may create unintended consequences.  

MNsure Appeals      

MNsure, Minnesota’s healthcare exchange, is where Minnesotans can purchase health insurance and potentially receive financial assistance.  MNsure determinations can be appealed including: (1) the amount of tax credits or cost sharing reductions determined by MNsure; (2) whether you are exempt from the individual mandate; (3) enrollment and  issues related to Medical Assistance and MinnesotaCare; (4) vacating a dismissal of an appeal; and (5) the employer notification of a penalty for not providing "affordable" health coverage.[9]  Attorneys can be very helpful during the administrative appeals process, but are not required.

 

State and Federal Agencies

Obamacare grants a large amount of power in state and federal administrative agencies to make regulations and provide enforcement mechanisms.  State and Federal agencies will be in charge of the bulk of the auditing, fraud investigation, and enforcement of Obamacare. Attorneys are needed to fill positions in these agencies.  Continued healthcare reform will also create JD-preferred policy positions in these agencies.  



[1] See IRC § 3102(f) (PPACA § 9105(a)(2)).

[2] See 26 C.F.R. §§ 46.4375 to 46.4377.

See also IRC §§ 43755-77 (PPACA § 6301(e)).

[3] See 45 C.F.R. § 153.400 et seq. (PPACA § 1341).

[4] See IRC § 6055 and 6056. The reporting requirements originally were effective in 2014, but IRS Notice 2013-45 provides for a one-year delay. However, the IRS is encouraging voluntary compliance for 2014.

[5] See FLSA § 18C (PPACA § 1558).

[6] See 77 Fed. Reg. 9179 (PROPOSED RULE) (PPACA § 6402(a)).

[7] See PPACA § 6409(a).

[8] See 78 Fed. Reg. 9457.

[9] MNsure Appeals Website: https://www.mnsure.org/help/appeals/index.jsp

*David J. Holt manages Holt Law, LLC and works with individuals and businesses in the areas of Healthcare Compliance, Healthcare Coverage Litigation, Business Litigation, Business Start-ups as well as other legal areas. Connect with David for updates on legal issues in healthcare: LinkedIn | Twitter | Facebook/HoltLaw | Google+

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