Note. The PACE Act does not revise the ACA's employer shared responsibility provision (also known as the "employer mandate"). The PACE Act only applies to the definition of small employer under the ACA for purposes of the small group market.

Small employer market

Before the ACA, the definition of a small employer in connection with a group health plan with respect to a calendar year and a plan year was an employer who employed an average of at least two but not more than 50 employees on business days during the preceding calendar year and who employs at least 2 employees on the first day of the plan year. The ACA revised this threshold. Employers with 51 to 100 employees are treated as small employers for purposes of health insurance markets but states have the option to treat them as large employers until January 1, 2016.

This change under the ACA was projected to subject many small businesses to different rating rules and requirements, including emergency services, hospitalization, rehabilitative services), and more. One result could be that small employers would choose to self-insure instead of remaining in the small group market because those employers will no longer be subject to the various requirements of the small group market. This could further increase the premiums for small employers.

PACE Act

The PACE Act to provide relief to small businesses was introduced earlier this year. The PACE Act was passed by the House on September 28, the Senate on October 1, and signed into law by President Obama on October 7.

The PACE Act generally defines a small employer as an employer who employed an average of 1-50 employees on business days during the preceding calendar year. The PACE Act also provides states the option of extending the definition of small employer to include employers with up to 100 employees. The PACE Act is effective upon enactment.

HRAs

Following passage of the ACA, the IRS announced that certain stand-alone HRAs did not satisfy the ACA's minimum benefit and annual dollar cap requirements for health insurance plans offered by employers. Many small employers have used these arrangements to reimburse employees for health care expenses. The IRS also announced transition relief from significant potential excise taxes, but the relief has expired. Now, small businesses are looking for a legislative fix.

Pending legislation in Congress would provide such a fix. Bipartisan legislation has been introduced in the House and Senate (HR 2911; Sen. 1697) to provide permanent relief for small employers. The bills would allow small businesses to use HRAs to financially assist their employees with the purchase of health coverage and related costs without violating the ACA's market reforms. Our office will keep you posted of developments.

Protecting Affordable Coverage for Employees (PACE) Act (P.L. 114-60)

Small Business Health Care Relief Act of 2015 (HR 2911, Sen. 1697)