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Benefits Law Update

October 25, 2011

Enacts Health Care Claims Tax

Article provided by Clark Hill PLC

On September 20, 2011, Michigan
Governor Rick Snyder signed into law the Health Insurance Claims Assessment
(HICA) Act, which establishes a 1% tax on certain paid health care claims
beginning January 1, 2012.  The HICA Act replaces the current 6% Use Tax on
Medicaid managed care organizations.  The Michigan Legislature enacted the
HICA Act based on anticipated action by the federal Centers for Medicare and
Medicaid offices prohibiting the Use Tax as a means of generating State revenue
to be used as a match for federal Medicaid funds.

Who Pays the Tax?

Insurers and third-party claims
administrators for self-funded plans will be directly responsible for payment
of the tax.  Employers/plan sponsors, however, should be aware that the
HICA Act will likely cause an increase in the cost of coverage as it is
anticipated that insurers and third party administrators will pass the cost
onto the plan sponsor.

What “Paid Claims” Does
the Tax Cover?

The HICA Act defines “paid
claims” as actual payments made to a health and medical services provider
or reimbursed to an individual by a carrier (including an insurer, HMO or group
health plan sponsor), third party administrator, or excess loss or stop loss
carrier.  Paid claims include the following:

  • Payments under a service contract for administrative
  • Cost-plus or noninsured benefit plan arrangements;
  • Payments for health and medical services provided under
    a group health plan;
  • Claims for services in Michigan by a pharmacy benefits
  • Individual, nongroup, and group insurance coverage for
    Michigan residents in Michigan that affect the rights of an insured in
    Michigan and bear a reasonable relation to Michigan, regardless of whether
    the coverage is delivered, renewed, or issued for delivery in Michigan.

Certain categories of payment
specifically exempted from the definition of paid claims include the following:

  • Claims-related expenses;
  • Payments made to a qualifying provider under an
    incentive compensation arrangement if the payments are not reflected in
    the processing of claims submitted for services rendered to specific
    covered individuals;
  • Claims for specified payments under forms of insurance,
    other than health insurance, such as disability and auto insurance;
  • Claims paid for services outside of Michigan or
    services for nonresidents;
  • Claims paid under a federal employee health benefit
    program, Medicare, Medicare Advantage, Medicare Part D, Tricare, by the
    Veterans Administration, and for high-risk pools established pursuant to
    the Patient Protection and Affordable Care Act;
  • Reimbursements under a flexible spending arrangement, a
    health savings account, an Archer medical savings account, a Medicare
    Advantage savings account, or other health reimbursement arrangement;
  • Co-pays, deductibles, and other health and medical
    services costs paid by an individual.

What Are the Payment Requirements?

Insurers and third party claims
administrators will begin to accrue the tax on January 1, 2012.  Returns
must be filed with the Michigan Department of Treasury and payments must be
made on April 30th, July 30th, October 30th,
and January 30th of each year for the preceding calendar year

The tax may not exceed $10,000 per
insured individual or covered life annually.  Additionally, the base collection
amount is set at $400 million and will be adjusted annually according to a
medical inflation rate.  If the annual collections exceed the inflation
adjusted base amount, a proportional credit will be refunded to insurers and
third party administrators.

The insurer or third party
administrator is responsible for developing a methodology for the collection of
the tax, but its policy must adhere to the following criteria, as outlined in
the legislation:

  • Application must be uniform within a line of business;
  • Use of health status or claims experience of an
    individual or group as an element or factor of the methodology is
  • The amount collected from groups with uninsured or
    self-funded coverage must be determined as a percentage of actual paid
  • The amount collected must reflect only the assessment
    levied and not include amounts such as related administrative expenses.

Is the Tax Preempted by ERISA?

There is some uncertainty as to
whether this tax may be preempted by the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), which preempts any state laws that
relate to employee benefit plans.  The U.S. Supreme Court has generally
held that ERISA preemption only applies when state laws mandate benefit
structures or administration or provide for enforcement mechanisms different
than those in ERISA.  The U.S. Supreme Court has not specifically ruled on
a general tax on all health care claims, and therefore, it is possible that the
tax will be challenged on these grounds in the future.

You can obtain a copy of the HICA Act on the
Michigan Legislature’s website by clicking here.

Clark Hill

Clark Hill
PLC is a full-service law firm that provides business legal services,
government and public affairs, and personal legal services to our clients
throughout the country. With offices in Arizona, Illinois, Michigan and
Washington, DC, Clark Hill has more than 200 attorneys and professionals.

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