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If you are an employer, you’re aware of the confusion surrounding the implementation of the Affordable Care Act (ACA). While many of the ACA’s provisions apply only to large employers (those with 50 or more full-time equivalent employees), the Act is filled with traps for the unwary small employer as well.

One area of concern for small employers involves the broad definition of “group health plan” under IRC 9832(a). By reference to IRC 5000(b)(1), the definition of a “group health plan” includes any plan of, or contributed to by, an employer to provide health care to employees. Common employer sponsored reimbursement plans such as Health Reimbursement Arrangements (HRAs), Employer Payment Plans (EPPs), and Flexible Spending Accounts (FSAs) all fall under this definition. It’s important to note that these types of plans may overlap, so employers must use caution regardless of the type of reimbursement arrangement they have in place.

An HRA is a reimbursement arrangement funded solely by an employer to pay for employees’ qualified medical expenses, which may or may not include health insurance premiums. Employees cannot make pre-tax contributions to an HRA. Employee Payment Plans are a specific type of HRA that have been incentivized by the IRS for over 50 years. Rather than provide expensive, difficult to administer group health coverage to employees, many small employers have used EPPs to reimburse their employees for individually purchased health insurance policies. Revenue Ruling 61-146 provides that a reimbursement under an EPP is excluded from the employee’s gross income. The exclusion also applies if an employer pays employee health insurance premiums directly to the healthcare provider. The Revenue Ruling remains in effect and employees are still eligible to receive tax-free reimbursements for health insurance. But employers beware: the employee exclusion for the reimbursement comes at a high cost for the business.

IRC Section 4980D provides that an employer operating a noncomplying group health plan after January 1, 2014, must pay a tax in the amount of $100 per day for each employee covered by the noncomplying plan. Small employers are not exempt from this penalty. IRS Notice 2013-54 provides some guidance on the treatment of employer reimbursement policies. Because an HRA is considered a group health plan under IRC 9832(a), it must comply with the ACA’s market reforms, including sections 2711 and 2713 of the Public Health Services Act. Section 2711 provides that a group health plan may not establish any annual limit on the dollar amount of benefits for any individual, and Section 2713 requires that a group health plan provide coverage for certain preventive services without cost sharing. Like other Health Reimbursement Arrangements, EPPs are considered group health plans that must comply with the ACA market reforms. Under Notice 2013-54, EPPs violate the ACA’s prohibition on dollar limits because the plan benefit is deemed to be only the amount of the premium paid by the employer. Even though employees may be entitled to unlimited benefits under their individual policies, the Notice states that the EPP cannot be integrated with an individual health insurance policy. Thus, an employer who reimburses employees for individual health insurance policies is subject to the $100 per day per employee penalty.

If certain requirements are met, an employer’s payroll practices of forwarding post-tax employee wages to a health insurance provider is not considered a group health plan that is subject to the market reforms. Under this type of arrangement, no contributions can be made by the employer or any employee organization, participation in the plan must be voluntary, and the employer can receive no benefit from the program (See 29 C.F.R. §2510.3-1(j)). If an employer wishes to provide these services to employees, great care should be taken to insure that the requirements are met so that the employer does not inadvertently establish a group health plan.

Although the ACA provides that the 4980D penalty applies to non-complying group health plans after January 1, 2014, the IRS has offered limited transition relief for reimbursement plans that are not in compliance with the market reforms. Notice 2015-17 provides that small employers