ACA News & Publications

Health Care Reform – Important Guidance for Medical Loss Ratio Rebates

August 1, 2012

The Affordable Care Act’s medical loss ratio (MLR) rules mandate that health insurance carriers report how they spend their premium revenue to the Department of Health and Human Services (HHS). In addition, carriers that do not spend at least 80 percent (small group) or 85 percent (large group) of their premium revenue on reimbursement for clinical services and health care quality improvement must provide rebates to consumers beginning in 2012.

Effective Date

The MLR requirements, which are enforced by the Department of Health and Human Services (HHS) require rebates be paid by August 1 following the end of the MLR reporting year. Thus, carriers are required to pay rebates by Aug. 1, 2012, based on their 2011 MLRs.

Insurer MLR Reporting Requirements

Beginning in 2011, carriers (insurance companies) will have to report the following information in each State it does business. These reports will be posted publicly by HHS so residents of every State will have information on the value of health plans offered by different insurance companies in their State.

  • Total earned premiums;
  • Total reimbursement for clinical services;
  • Total spending on activities to improve quality; and
  • Total spending on all other non‐claims costs excluding federal and State taxes and fees.

Policyholders (Employers) who received an MLR rebate need to carefully review the MLR rebate rules to decide how they will administer the rebates. If your carrier met the MLR, you and yourr employees will receive notification directly from the carrier.

How Employers Should Handle MLR Rebates

MLR Rebates

Carriers that fail to achieve the MLR threshold (and therefore spend more than 15% of premium dollars on things other than paying health insurance claims and quality activities) must pay the rebate.

How an employer should handle any MLR rebate it receives from a carrier depends on the type of group health plan (an ERISA plan, a non‐federal governmental group health plan or a non‐ERISA, non‐governmental plan) and whether the rebate is considered a plan asset.

ERISA Plans

Most, but not all, group health plans are governed by ERISA. Employers with ERISA plans should not assume that they can simply retain an MLR rebate. The Department of Labor (DOL) issued Technical Release 2011‐4 to explain how ERISA’s fiduciary duty and plan asset rules apply to MLR rebates. Any rebate amount that qualifies as a plan asset under ERISA must be used for the exclusive benefit of the plan’s participants and beneficiaries.

The rules offered in Technical Release 2011‐04 are simple enough to follow with respect to current plan participants. But to what extent must former participants share in any rebate? (After all, the rebate paid in the current year will be attributable to plan operations and premiums paid in the prior year.) In that case, the technical release allows an employer to determine whether the cost of distributing shares of a rebate to former participants would outweigh the benefit of the distribution. Specifically, if the cost of making distributions to former participants would equal or exceed the amount to be distributed, a plan fiduciary may use the “de minimis” rules for a participant allocation of less than $20 to decide to allocate the proceeds solely to current participants based on a fair and objective allocation method.

Is the Rebate a Plan Asset?

According to Technical Release 2011‐4, in the absence of specific plan or policy language addressing these types of distributions, whether the rebate will constitute a plan asset depends, in part, on the identity of the policyholder and on the source of premium payments.

  • If the plan or its trust is the policyholder, the policy is an asset of the plan and the entire rebate must be treated as a plan asset.
  • The portion of the rebate that must be treated as a plan asset depends on who paid the insurance premiums. For example:
    • If the premiums were paid entirely out of trust assets, the entire rebate amount is a plan asset;
    • If the employer paid 100 percent of the premiums, the rebate is not a plan asset and the employer can retain the entire rebate amount;
    • If participants paid 100 percent of the premiums, the entire rebate amount is a plan asset; and
    • If the premiums were paid partly by the employer and partly by the participants, the percentage of the rebate equal to the percentage of the cost paid by participants is a plan asset.

How Should the Rebate be Used?

Once an employer determines that all or a portion of an MLR rebate is a plan asset, it must decide how to use the rebate for the exclusive benefit of the plan’s participants and beneficiaries. DOL Technical Release 2011‐04 identifies the following methods for applying the rebates:

  • The rebate can be distributed to participants under a reasonable, fair and objective allocation method. If the employer finds that the cost of distributing shares of a rebate to former participants approximates the amount of the proceeds, the fiduciary may decide to limit rebates to current participants.
  • If distributing payments to participants is not cost‐effective because the amounts are small or would give rise to tax consequences to the participants, the employer may utilize the rebate for other permissible plan purposes, such as applying the rebate toward future participant premium payments or toward benefit enhancements.

If a plan provides benefits under multiple policies, the employer must be careful to allocate the rebate for a particular policy only to the participants who were covered by that policy. According to the DOL, using a rebate generated by one plan to benefit another plan’s participants would be a breach of fiduciary duty.

To the extent a rebate qualifies as a plan asset, ERISA would generally require the amount to be held in trust. However, most group health plans receiving rebates do not maintain trusts because their premiums are paid from the employer’s general assets (including employee payroll deductions). In Technical Release 2011‐4, the DOL provides relief from the trust requirement for premium rebates that are used within three months of their receipt.

In addition, directing an carrier to apply the rebate toward future participant premium payments or toward benefit enhancements adopted by the plan sponsor would avoid the need for a trust and, in some circumstances, may be consistent with the employer’s fiduciary duties. Employers that decide to take this approach should coordinate with their insurance carriers to establish the process for handling rebates.

Non‐federal Governmental Plans

Group health plans maintained by non‐federal government employers (for example, state and local governments) are not governed by ERISA’s fiduciary standards. HHS’ interim final regulations on the MLR rules address how rebates for these plans should be handled.

Under these regulations, employers must use the portion of the rebate attributable to the amount of premium paid by employees for the benefit of its employees covered under the policy. This portion of the rebate must be applied to reduce employees’ premiums or must be provided to these employees as a cash refund. Under either option, the rebate may be applied to employees enrolled during the year in which the rebate is paid, rather than during the MLR reporting year.

Non‐ERISA, Non‐governmental Plans

HHS has also addressed rebates for non‐governmental group health plans that are not subject to ERISA, such as church plans. Under HHS final regulations, an carrier may make a rebate payment to the policyholder (typically, the employer sponsoring the plan) if it receives the policyholder’s written assurance that the rebate will be used for the benefit of current subscribers using one of the options described above for non‐federal governmental plans. Without this written assurance, carriers must pay the rebate directly to employees covered under the policy during the MLR reporting year.

Tax Treatment of Rebates

On April 19, 2012, the Internal Revenue Service (IRS) issued a set of frequently asked questions (FAQs) (http://www.irs.gov/newsroom/article/0,,id=256167,00.html) addressing the tax treatment of MLR rebates. In general, the rebates’ tax consequences depend on whether employees paid their premiums on an after‐tax or a pre‐tax basis.

After‐tax Premium Payments

If premiums were paid by employees on an after‐tax basis, the rebate will generally not be taxable income to employees and will not be subject to employment taxes. This tax treatment applies if the rebate is paid in cash or if it is applied to reduce current year premiums. However, if an employee deducted the premium payments on his or her prior year taxes, the rebate is taxable to the extent the employee received a tax benefit from the deduction.

Pre‐tax Premium Payments

If premiums were paid by employees on a pre‐tax basis under a cafeteria plan, the rebate will generally be taxable income to employees in the current year and will be subject to employment taxes. This is the case whether the rebate is paid in cash or is applied to reduce current year premiums. A premium reduction in the current year will reduce the amount that an employee can contribute on a pre‐tax basis. Thus, there is a corresponding increase in the employee’s taxable salary that is also wages subject to employment taxes.

Additional Guidance

DOL Technical Release 2011‐4 is available at: www.dol.gov/ebsa/newsroom/tr11‐04.html
IRS’ FAQS is available at: www.irs.gov/newsroom/article/0,,id=256167,00.html
MLR guidance is available from HHS at: http://cciio.cms.gov/programs/marketreforms/mlr/index.html
Health Plan met the 2011 MLR Standard: www.healthcare.gov

For More Information
For more information about this ACA Pathways or about any other health care reform-related provisions, please contact your Burnham Benefits consultant or Burnham Benefits at:

Burnham Benefits
949.833.2983
inquiries@burnhambenefits.com


This ACA Pathways is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

The information contained in this ACA Pathways includes emerging health care news from a limited perspective and does not encompass all views. The information was selected from a wide range of sources selected on the basis of their potential impact on employers and/or their employee benefit plans. For more information, please contact Burnham Benefits.

Back to News & Publications