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How the 2023 ACA Affordability Decrease to 9.12% Affects Employers

Executive Summary

  • 2023 ACA Affordability Percentage (Large!) Decrease to 9.12%: The IRS has announced that the ACA affordability percentage used to determine compliance with the employer mandate will decrease dramatically from 9.61% in 2022 to 9.12% in 2023 (by far the lowest level to date) of the employee’s household income, as determined under one of the safe harbor approaches.
  • 2023 Lowest-Cost Plan is No More Than $103.28/Month (Federal Poverty Line Affordability Safe Harbor): Employers with a calendar plan year offering a medical plan option in 2023 that costs employees no more than $103.28 per month for employee-only coverage will automatically meet the ACA affordability standard under the federal poverty line affordability safe harbor that deems coverage affordable for all full-time employees (and permits the employer to use qualifying offer method for streamlined ACA reporting).
  • 2023 Lowest-Cost Plan Exceeds $103.28/Month (Rate of Pay Affordability Safe Harbor): Employers that do not offer a medical plan option meeting the 2023 federal poverty line affordability safe harbor (i.e., the lowest-cost plan option at the employee-only tier costs employees more than $103.28/month) should generally utilize the rate of pay affordability safe harbor. This approach applies an analysis of the lowest hourly rate of pay for hourly full-time employees and the lowest monthly salary for salaried full-time employees. While the calculation is straightforward and mostly routine now, employers should prepare early to avoid being caught off guard by the increased employer contributions required to keep the plan affordable at the much lower 9.12% rate for 2023.
  • 2023 Contribution Strategy Considerations: Consider the ACA affordability safe harbor requirements when designing 2023 employee contribution levels to avoid potential employer mandate “B Penalty” liability. Where possible within budgetary constraints, employers should prepare to offer at least one medical plan option to full-time employees in all regions with an employee-share of the premium not exceeding $103.28/month for employee-only coverage to simplify affordability compliance under the federal poverty line safe harbor.

2023 Affordability Percentage Set at 9.12%

This week the IRS issued Revenue Procedure 2022-34, which significantly decreases the affordability threshold for ACA employer mandate purposes to 9.12% for plan years beginning in 2023. The new 9.12% level marks by far the lowest affordability percentage to date, as well as the first time the threshold has dropped below the initial 9.5% standard set by the ACA.

The historical breakdown is as follows:

  • 2015 Percentage: 9.56%
  • 2016 Percentage: 9.66%
  • 2017 Percentage: 9.69%
  • 2018 Percentage: 9.56%
  • 2019 Percentage: 9.86%
  • 2020 Percentage: 9.78%
  • 2021 Percentage: 9.83%
  • 2022 Percentage: 9.61%
  • 2023 Percentage: 9.12%

The affordability percentage decrease is based on the ACA’s index inflation metric, which is the rate of premium growth for the preceding year over the rate of CPI growth for the preceding year. The affordability percentages apply for plan years beginning in the listed year. A calendar plan year will therefore have the 9.12% affordability threshold for the plan year beginning January 1, 2023.

Although the Revenue Procedure primarily addresses eligibility thresholds for Exchange subsidies (the §36B premium tax credit), the IRS confirmed in IRS Notice 2015-87 (frequently referred to as the “ACA Potluck Guidance”) that the employer mandate affordability safe harbors are indexed for inflation in the same manner as affordability is determined on the Exchange.

Which Employers Need to Worry About ACA Affordability?

The ACA employer mandate rules apply to employers that are “Applicable Large Employers,” or “ALEs.” In general, an employer is an ALE if it (along with any members in its controlled group) employed an average of at least 50 full-time employees, including full-time equivalent employees, on business days during the preceding calendar year.

ALEs are receiving IRS Letters 226J informing them of ACA employer mandate penalty assessments under both the A Penalty and B Penalty (described below). These assessments can be very large.

For more details, see our prior posts:

Why Does it Matter if an ALE Offers “Affordable” Coverage?

There are two potential ACA employer mandate penalties.

a) IRC §4980H(a)—The “A Penalty”

The first is the §4980H(a) penalty—frequently referred to as the “A Penalty” or the “Sledge Hammer Penalty.” This penalty applies where the ALE fails to offer minimum essential coverage to at least 95% of its full-time employees in any given calendar month.

The 2022 A Penalty is $229.17/month ($2,750 annualized) multiplied by all full-time employees (reduced by the first 30). It is triggered by at least one full-time employee who was not offered minimum essential coverage enrolling in subsidized coverage on the Exchange.

A Penalty liability is focused on whether the employer offered a major medical plan to a sufficient percentage of full-time employees—not whether that offer was affordable (or provided minimum value).

b) IRC §4980H(b)—The “B Penalty”

The second is the §4980H(b) penalty—frequently referred to as the “B Penalty or the “Tack Hammer Penalty.” This penalty applies where the ALE is not subject to the A Penalty (i.e., the ALE offers coverage to at least 95% of full-time employees).

The B Penalty applies for each full-time employee who was:

  1. not offered minimum essential coverage,
  2. offered unaffordable coverage, or
  3. offered coverage that did not provide minimum value.

Only those full-time employees who enroll in subsidized coverage on the Exchange will trigger the B Penalty. Unlike the A Penalty, the B Penalty is not multiplied by all full-time employees.

In other words, an ALE who offers minimum essential coverage to a full-time employee will be subject to the B Penalty if:

  1. the coverage does not provide minimum value or is not affordable (more below); and
  2. the full-time employee declines the offer of coverage and instead enrolls in subsidized coverage on the Exchange.

The 2022 B Penalty is $343.33/month ($4,120 annualized) per full-time employee receiving subsidized coverage on the Exchange.

Therefore, an ALE’s failure to offer coverage that meets the ACA affordability standard for any given full-time employee creates potential B Penalty liability of $343.33/month ($4,120 annualized) for that full-time employee. This amount will likely increase slightly for 2023.

How Does the ACA Affordability Test Work?

The ACA affordability test is based on the employee-share of the premium for employee-only coverage under the ALE’s lowest-cost plan option in which the employee is eligible to enroll (that provides minimum value). In other words, you look to the lowest possible amount that an employee could pay to enroll in the employer’s major medical plan, regardless of what plan option (if any) the employee elects.

Employers that offer different medical plan options to different groups of employees will need to look to the lowest-cost plan option available to each particular employee group to determine affordability. This issue most commonly arises for employers with different regional coverage for employees in various states. For example, the lowest-cost plan option may be a regional HMO in California that is not available to employees in other states. In that situation, the affordability analysis for employees in the other states (who are not eligible for the CA regional HMO) is based on the lowest-cost plan option available to those particular employees.

The affordability test technically looks to whether that lowest possible employee contribution is within 9.12% (2023) of the employee’s household income. However, the IRS recognizes that employers generally do not know the employee’s household income.

Therefore, the IRS provides three safe harbors for ALEs to determine whether an offer of coverage is affordable for purposes of avoiding B Penalty liability:

  1. Federal Poverty Line Affordability Safe Harbor
  2. Rate of Pay Affordability Safe Harbor
  3. Form W-2 Affordability Safe Harbor

If an ALE’s offer meets any of these safe harbors, the offer of coverage is deemed affordable for B Penalty purposes—regardless of whether the employee may qualify for Exchange subsidies based on the employee’s actual income and number of household members.

The affordability status of an offer is not affected by an employee electing to enroll in coverage other than the lowest possible employee contribution amount. For example, if an employee chooses the highest-cost family plan coverage option, the offer’s affordability status is still determined by reference to the lowest-cost employee-only coverage option that was available to the full-time employee.

May an ALE Use More than One Affordability Safe Harbor?

Yes, the ALE may choose different safe harbors for any reasonable category of employees. However, the caveat is that the ALE must apply each safe harbor on a uniform and consistent basis for all employees in each category.

The IRS states that reasonable categories include specified job categories, nature of compensation (such as salaried or hourly), geographic location, and similar bona fide business criteria. Listing employees specifically by name (or other categories having the same effect) is not considered a reasonable category.

1) The Federal Poverty Line Affordability Safe Harbor

Action Item: Always use this safe harbor if it is available!

An ALE’s coverage will be automatically deemed affordable for all full-time employees if the offer meets the federal poverty line affordability safe harbor.

In order to qualify, the employee-share of the premium for the ALE’s lowest-cost plan option (which provides minimum value) at the employee-only coverage tier cannot exceed 9.12% (2023) of the federal poverty line for a single individual, divided by 12. Employers are permitted to use the federal poverty line threshold that is in effect within six months before the first day of the plan year.

The 2022 federal poverty line for a single individual in the contiguous 48 states (including D.C.) is $13,590.

Important Notes:

  • Different thresholds apply for employees in Hawaii and Alaska;
  • Employers with non-calendar plan years beginning prior to July 1, 2023 may choose to instead base the calculation on the 2023 threshold amount that is made available in January;
  • Employers with non-calendar plan years beginning on or after July 1, 2023 must base the calculation on the 2023 threshold amount.

Accordingly, for calendar plan years, the 2023 federal poverty line affordability safe harbor applies where the lowest possible employee contribution for the major medical plan does not exceed $103.28. ($13,590 x 0.0912 = $1,239.40 / 12 = $103.28)

The historical breakdown is as follows:

2015 Federal Poverty Line Limit: $92.97/month

2016 Federal Poverty Line Limit: $94.74/month

2017 Federal Poverty Line Limit: $95.93/month

2018 Federal Poverty Line Limit: $96.08/month

2019 Federal Poverty Line Limit: $99.75/month

2020 Federal Poverty Line Limit: $101.79/month

2021 Federal Poverty Line Limit: $104.52/month

2022 Federal Poverty Line Limit: $103.14/month

2023 Federal Poverty Line Limit: $103.28/month

Action Item: Consider offering a plan option in 2023 that costs full-time employees no more than $1039.28/month to simplify affordability compliance.

ACA Reporting Under the Federal Poverty Line Safe Harbor

ALEs meeting the federal poverty line affordability safe harbor may utilize the Qualifying Offer Method (provided the offer of coverage was made available to the employee’s spouse and dependents, if any).

Under the Qualifying Offer Method, the employer does not complete Line 15 (the employee required contribution) of the full-time employee’s Form 1095-C. This streamlined reporting option is available because the monthly employee-share of the premium for the lowest-cost plan at the employee-only tier is not relevant for B Penalty purposes where coverage is deemed affordable for all employees under the federal poverty line affordability safe harbor.

The employer must check the “Qualifying Offer Method” box in Line 22 (Box A) of the Form 1094-C to take advantage of this approach. For full-time employees who are offered coverage, the employer will list Code “1A” (qualifying offer) in Line 14 of the full-time employee’s Form 1095-C.

See our previous posts for more details:

If the employee waives coverage, the employer generally will enter Code “2G” (federal poverty line affordability safe harbor) in Line 16 to confirm that no B Penalty could apply for the full-time employee.

However, the Forms 1094-C and 1095-C Instructions state the employer “may, but is not required to, enter an applicable code on line 16 for any month for which code 1A is entered on line 14,” generally recognizing that the qualifying offer code in Line 14 already embeds the federal poverty line affordability report that is redundant in Line 16.

Employees who enroll in the plan will have Code “2C” (enrolled in health coverage offered) because the enrolled code takes precedence over the affordability safe harbor codes for Line 16.

Action Item: If the plan meets the federal poverty line affordability safe harbor, take advantage of the Qualifying Offer Method for streamlined ACA reporting via Forms 1094-C and 1095-C.

Note: The Qualifying Offer Method also permits ALEs to provide a substitute form—in place of the standard Form 1095—to full-time employees who received a qualifying offer for all 12 months of the calendar year and were not enrolled in self-insured coverage. We generally do not recommend this substitute form approach because the employer is still required to provide the Form 1095-C to the IRS.)

2) The Rate of Pay Affordability Safe Harbor

Action Item: In most cases, ALEs that do not qualify to use the federal poverty line affordability safe harbor because the lowest possible employee contribution for the major medical plan exceeds $103.28 will want to use the rate of pay affordability safe harbor.

The rate of pay affordability safe harbor applies the applicable affordability percentage based on two separate tests—one for hourly full-time employees, and one for salaried full-time employees.

  • Hourly Full-Time Employees
    Test: 9.12% (2023) of the employee’s hourly rate of pay as of the first day of the coverage period x 130 hours
    Note: The hourly rate of pay is multiplied by 130 regardless of actual hours of service performed. The IRS uses 130 hours of service in a calendar month as a proxy for the 30 hours of service/week full-time status definition in §4980H.
    Example:
    Widget Co. has a calendar plan year, and their lowest-paid full-time hourly employees are paid at a rate of $15/hour in 2023
    130 hours of service x $15/hour = $1,950 assumed monthly income
    Full-time employee monthly contribution rate for lowest-cost, employee-only coverage cannot exceed 9.12% (2023) of $1,950
    $1,950 x. 0.0912 = $177.84/month maximum
  • Salaried Full-Time Employees
    Test: 9.12% (2023) of the employee’s monthly salary as of the first day of the coverage period
    Note: Special rules apply if the employee’s hourly rate or monthly salary is reduced.
    Example:
    Widget Co. has a calendar plan year, and their lowest-paid full-time salaried employees are paid a salary of $36,000 in 2023
    $36,000 / 12 = $3,000 monthly salary
    Full-time employee monthly contribution rate for lowest-cost, employee-only coverage cannot exceed 9.12% (2023) of $3,000
    $3,000 x 0.0912 = $273.60/month maximum

Action Item: An ALE will meet the rate of pay affordability safe harbor for all full-time employees if the employee-share of the premium for the lowest-cost plan at the employee-only tier does not exceed these monthly maximum thresholds.

In the examples above, Widget Co.’s plan would be affordable for all full-time employees (hourly and salaried) if the lowest possible amount that an employee could pay to enroll in the employer’s major medical plan does not exceed $177.84/month.

ACA Reporting Under the Rate of Pay Safe Harbor

If the employee waives coverage, the employer will enter Code “2H” (rate of pay affordability safe harbor) in Line 16 to confirm that no B Penalty could apply for the full-time employee. Employees who enroll in the plan will have Code “2C” (enrolled in health coverage offered) because the enrolled code takes precedence over the affordability safe harbor codes for Line 16.

3) The Form W-2 Affordability Safe Harbor

Action Item: This is generally the least desirable affordability safe harbor because employers cannot make a prospective determination as to whether their offer qualifies. Most employers will want to attempt to meet the federal poverty line or rate of pay affordability safe harbors (both of which employers can utilize prospectively to set rates prior to the start of the plan year) before assessing the Form W-2 affordability safe harbor.

The Form W-2 affordability safe harbor provides that coverage is affordable if the employee-share of the premium for the lowest-cost plan option at the employee-only tier does not exceed 9.12% (2023) of the employee’s Box 1 wages on the Form W-2.

This Form W-2 safe harbor approach has several disadvantages:

  • Disadvantage #1: Retrospective Determination—The Form W-2 affordability safe harbor provides little predictability because employees’ Box 1 wages are unknown until January of the following year. For example, an ALE would not know until January of 2024 whether it met the Form W-2 affordability safe harbor for any full-time employee in 2023.
  • Disadvantage #2: Disregarded Compensation—Box 1 of the Form W-2 does not include many common forms of compensation, including 401(k)/403(b)/457(b) employee deferrals and Section 125 salary reductions for health and welfare plan coverage and FSA/HSA contributions. This can result in a significantly reduced Box 1 amount from an ALE’s expectation for any given full-time employee.
  • Disadvantage #3: Fixed Premium—The employee-share of the premium must remain consistent as an amount or percentage for the full plan year. This means that employers cannot make mid-year adjustments to address lower-than-anticipated employee Box 1 amounts, which could occur for a wide variety of unpredictable reasons.

In short, the Form W-2 affordability safe harbor is probably well suited only for employers that impose an employee contribution amount based on a fixed percentage of Form W-2 wages throughout the year. However, most ALEs do not structure contribution tiers in this manner—thereby limiting the Form W-2 affordability safe harbor as a viable contender to only a select few employers.

Action Item: Consider creating a fixed percentage-based contribution structure if you are going to rely on the Form W-2 affordability safe harbor.

ACA Reporting Under the Form W-2 Safe Harbor

If the employee waives coverage, the employer will enter Code “2F” (Form W-2 affordability safe harbor) in Line 16 to confirm that no B Penalty could apply for the full-time employee. Employees who enroll in the plan will have Code “2C” (enrolled in offer of health coverage) because the enrolled code takes precedence over the affordability safe harbor codes for Line 16.

How Do Flex Credits Affect the Affordability Determination?

Flex credits will reduce the dollar amount of the employee-share of the lowest-cost plan option providing minimum value that is used to determine affordability if they meet a three-part test to qualify as a “health flex contribution”:

  1. The employee may not opt to receive the amount as a taxable benefit (i.e., it is not a cashable flex credit);
  2. The employee may use the amount to pay for minimum essential coverage (i.e., the employer’s major medical plan); and
  3. The employee may use the amount exclusively for health coverage costs (e.g., medical, dental, vision, health FSA, HSA).

For example, assume Widget Co. offers flex credits to employees of $500/month. Of the $500, the employee must allocate $300 to the medical, dental, vision, health FSA, or HSA options. $200 of the flex credit amount made available can be allocated to non-health benefits and/or cashed out as taxable income. In that case, only $300 of the flex credits qualify as “health flex contributions” that will be counted as employer contributions for affordability purposes.

Action Item: If you offer a defined contribution-style flex credit approach to employees, make sure that a sufficient portion is designated as “health flex contributions” to qualify under an affordability safe harbor. This will require at least some of the flex credits be non-cashable and designated for health plan purposes only.

How Do Opt-Out Credits Affect the Affordability Determination?

The general rule is that the amount of the opt-out credit must be added to the employee-share of the lowest-cost plan option providing minimum value that is used to determine affordability.

Example: The employee-share of the premium for the employer’s lowest-cost plan option providing minimum value is $75/month for employee-only coverage. The plan offers a $25/month opt-out credit for employees who decline enrollment. Under the general rule, the plan costs $100/month ($75/month premium plus $25 opt-out credit) for purposes of the affordability rules to reflect the $25/month an employee forgoes when electing to enroll.

To avoid the need to add the opt-out credit amount to the cost of the plan, the opt-out credit must meet the definition of an “eligible opt-out arrangement,” which requires:

The opt-out credit is conditioned on the employee declining to enroll in the major medical plan; and

The opt-out credit is conditioned on the employee providing reasonable evidence (including an employee attestation) annually that the employee and all members of the employee’s expected tax family have or will have minimum essential coverage under a group health plan during the period of coverage to which the opt-out credit applies.

Note: In late 2016, the IRS indefinitely delayed these eligible opt-out arrangement rules for opt-out credits in place prior to December 16, 2015.

Action Item: If you are adding an opt-out credit, make sure that you follow these eligible opt-out arrangement conditions to ensure that the opt-out credit does not affect whether your offer of coverage meets an affordability safe harbor.

Summary

As with just about everything related to the ACA, the affordability determination under the employer mandate rules can be complex.

However, with respect to the determination of which affordability safe harbor ALEs with a calendar plan year should use, this is generally a straightforward analysis for most employers:

  • The monthly employee-share of the premium for the lowest-cost major medical plan option at the employee-only tier does not exceed $103.28/month (2023): USE THE FEDERAL POVERTY LINE AFFORDABILITY SAFE HARBOR
  • The monthly employee-share of the premium for the lowest-cost major medical plan option at the employee-only tier exceeds $103.28/month (2023): USE THE RATE OF PAY AFFORDABILITY SAFE HARBOR

Employers should always use the federal poverty line affordability safe harbor where available because it:

  1. Results in coverage automatically being deemed affordable with no calculations necessary, and
  2. Permits employers to take advantage of streamlined ACA reporting via the Qualifying Offer Method. 

In most cases, employers that do not meet the federal poverty line affordability safe harbor (i.e., employees’ monthly lowest-cost plan exceeds $103.28/month in 2023) will want to utilize the rate of pay affordability safe harbor by following the calculations outlined above. This approach has many significant advantages over the Form W-2 affordability safe harbor alternative.


Brian Gilmore

About the author

Brian Gilmore

Brian Gilmore is the Lead Benefits Counsel at Newfront. He assists clients on a wide variety of employee benefits compliance issues. The primary areas of his practice include ERISA, ACA, COBRA, HIPAA, Section 125 Cafeteria Plans, and 401(k) plans. Brian also presents regularly at trade events and in webinars on current hot topics in employee benefits law. Connect with Brian on LinkedIn.


The information provided is of a general nature and an educational resource. It is not intended to provide advice or address the situation of any particular individual or entity. Any recipient shall be responsible for the use to which it puts this document. Newfront shall have no liability for the information provided. While care has been taken to produce this document, Newfront does not warrant, represent or guarantee the completeness, accuracy, adequacy, or fitness with respect to the information contained in this document. The information provided does not reflect new circumstances, or additional regulatory and legal changes. The issues addressed may have legal, financial, and health implications, and we recommend you speak to your legal, financial, and health advisors before acting on any of the information provided.

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