Congressional Republicans Continue Working on Possible Path Forward for Health Reform
Congressional Republicans Continue Working on Possible Path Forward for Health Reform
From NAHU Washington Update
As congressional groups met this week to work out their differences in the wake of the decision two weeks ago to scrap the American Health Care Act (AHCA), President Donald Trump made a late plea on Wednesday urging Congress to vote on a repeal of the ACA before they left town for their two-week Spring Recess. While Congress opted against voting again on the AHCA this week, they did pass a reinsurance amendment to the AHCA and a separate bill that re-affirms the purpose of stop-loss insurance. Congress is now back in district and is set to return the week of April 24, when they will quickly face a tight deadline to pass a new budget agreement by April 28 to prevent another government shutdown.
After being notified late Wednesday that it would be called into emergency action to consider an amendment to the AHCA, by Thursday afternoon the House Rules Committee voted 9-2 along party lines to add language to the reconciliation bill to create a $15 billion “Federal Invisible Risk Sharing Program” to help insurers cover the costs of their sickest enrollees. The amendment is sponsored by Representatives Gary Palmer (R-AL) and David Schweikert (R-AZ) from the House Freedom Caucus and is similar to the ACA’s temporary reinsurance program that expired at the end of 2016. This reinsurance program is separate from and would be in addition to the AHCA’s “Patient and State Stability Fund,” which is designed to expand coverage, increase insurance options, promote access to benefits, and reduce out-of-pocket spending through $10 billion in annual funding over 10 years.
The new reinsurance program would provide states with $15 billion in funding between 2018 and 2026 to reimburse insurers for high-cost plan enrollees. The program would not function as a traditional high-risk pool, as individuals would continue to buy coverage from the individual market, but if they have certain medical conditions, federal funding would cover their claims cost. This could help bring stability to the fragile market and reduce premiums for all consumers in the individual market. The amendment is short on specifics, including which medical conditions would be covered or how insurers would apply for reimbursement, and instead defers to the federal and state agencies to implement the program. It would also permit states to be able to take over the program in 2020, although there aren’t details on how that would work.
A study by Milliman and the Foundation for Government Accountability found that this amendment could help lower premiums by an average of 31% and result in 2 million fewer uninsured individuals . The study includes several assumptions on provisions that were not included in the amendment, including that the reinsurance would only cover claims that exceed $10,000, that the reimbursements would be made at Medicare rates and not those negotiated by the insurers, and that insurers would transfer the full premiums of these consumers directly to the government in exchange for the protections of the reinsurance program. An earlier version of the amendment included some of these details, but because the amendment that was ultimately passed opted to defer to rule makers to implement, it is unlikely that, should the AHCA be passed with this provision, that it would conform to the study’s assumptions.
Meanwhile, the House voted 400-16 on Wednesday to pass H.R. 1304, the Self-Insurance Protection Act. The bill is sponsored by Representative Phil Roe (R-TN) and clarifies that medical stop-loss insurance cannot be redefined as health insurance coverage at the federal level. The bill would change the federal definition of “health insurance coverage” to make these clarifications that stop-loss plans cannot be regulated as health insurance by amending sections of the Employee Retirement Income Security Act, the Public Health Service Act, and the Internal Revenue Code. The Obama Administration had previously increased oversight of self-insured plans as small employers increasingly moved from the fully insured market to the self-insured market to avoid the ACA’s coverage requirements. H.R. 1304 now heads for consideration by the Senate where there is not a companion bill.
Throughout the week, congressional Republicans have been continuing their discussions over how to tackle health reform moving forward. There remains significant disagreements between members of the far-right House Freedom Caucus and the centrist-Republican Tuesday Group and by the end of the week both groups seemed to admit that there is still no clear path forward. Representative Chris Collins (R-NY), a member of the Tuesday Group, doubted that a deal would ever be possible, noting his discouragement with hard-liners for never being satisfied with the concessions they are given, “The Freedom Caucus continues to play Lucy with the football,” and that, “Nothing’s going to change and they’re not there now. What would get them there?”
Vice President Mike Pence led the White House’s efforts this week to bring the two factions together. However, each of the concessions that Pence tried to win the support of Freedom Caucus members were quickly panned by centrist and mainstream Republicans. This included a proposal that would allow states to opt-out of the ACA’s essential health benefits and community rating provisions. While there would still be a prohibition on excluding individuals with pre-existing conditions, this would allow insurers to charge them more for coverage.
This proposal was later pared down to just allowing states to opt-out of minimum health benefits and narrowly increasing flexibility with age-rating bands, which led to confusion and consternation among members of both groups, as Freedom Caucus members saw the proposal as falling far short of their requests while the Tuesday Group thought that the proposal went too far. This has led to blame being cast by members of both groups and outside organizations, including Heritage Action, which called out the moderate Republicans saying, “They’re opposed because they do not want to repeal Obamacare” and “They do not believe in the basic premises of the Republican party.” Meanwhile, Representative Collins of the Tuesday Group cast blame on House Speaker Paul Ryan (R-WI) and House Majority Leader Kevin McCarthy (R-CA), “I’ve been extremely unimpressed at this point with the job House leadership is doing.”
Following the proposal’s rejection, the White House’s discussions with Speaker Ryan and Majority Leader McCarthy culminated in the demand for Congress to hold a vote on the bill before the two-week break and prompted the Rules Committee vote on the reinsurance amendment. While the House opted against holding a vote this week, just prior to leaving for the break, McCarthy claimed that members could be called back at some point during the recess to vote on a new healthcare package. But with a full calendar of items they must pass awaiting their return—including avoiding a government shutdown and re-authorization of the Prescription Drug User Fee Act—it is unlikely that repeal efforts will be seriously considered until May at the earliest, assuming Republicans determine there is any possibility for crafting a policy solution that will satisfy all constituencies of the party.
As Republicans continue to hash out these disagreements, the White House’s congressional liaison and the conservative-leaning Blue Dog Democrats held a meeting to discuss various issues where they could find agreement. President Trump previously noted that he may need Democratic support to push through his agenda items after Republicans have shown sharp policy disagreements. Yet, Democrats have also pushed back at the administration, including a score of Senate Democrats who called out Health and Human Services Secretary Tom Price for sharing a list of proposed regulatory changes with House Republicans and not Democrats during negotiations over the AHCA, and requested that the administration provide those changes and to work with Democrats on improvements to the ACA.
Democrats have also been relaying their concerns with the White House over the ACA’s cost-sharing reduction subsidies, imploring the administration to continue challenging the House of Representative’s lawsuit on their validity. Nine Democratic senators sent a letter to Attorney General Jeff Sessions this week noting their critical importance to the stability of the marketplaces. In February, the administration was granted a 90-day postponement of the case to determine how to proceed with the case. A federal judge had previously ruled that the subsidies were invalid, and if the administration were to drop their challenge then the payments made by the government to insurers would cease, while insurers would still be required to provide the roughly $9 billion in combined annual subsidy payments to individuals, likely causing insurers to abandon the marketplaces and throw them into chaos.
Pulling the plug on Healthcare in the US – Dissecting the Regular Facts from the Alternative Facts
With all cards on the table, is this Pay or Play 2.0?
Where do we stand now?
New changes in the last 24 hours were made among them:
1. Repeal the 10 essential health benefits mandate (Conservative Caucus)
2. Add an addition $15B into a flexibility fund (for states to manage Medicaid) (Coverage Caucus – side note here – Senator Cassidy R-LA – who worked with Senator Collins R-ME on a separate bill is heading the coverage caucus as they are working to keep coverage in the Medicaid programs)
3. Keep the .9% Medicare tax for high-income earners making over $200,000 filing single for six more years – this would be to keep bringing in new revenue (This was originally in the bill to sunset as of 2018, then adjusted to sunset this year but looks to be sunsetted in 6 years)
What else did I miss?
Earlier this week, additional changes were made to the bill as it was attempted to garner enough votes to pass on the floor of the House. Most of these are changes in implementation dates to appeal to different parts of the House GOP.
1. Moving the repeal of the Tanning & Medical Device tax from 2018 to 2017
2. Moving the repeal of the business tax cap for executives in health insurance companies from 2018 to 2017
3. Sunset new Medicaid expansion for states that have not expanded from 2020 to 2017 (Kansas is currently trying to expand Medicaid as we speak)
4. NY Representatives add an amendment to move $2.3B Medicaid costs from local (county – excluding large metropolises like NYC) to the State Budget
5. Lower the medical expense deduction from 7.5% under the original bill now to a new low of 5.8% and to move up implementation from 2018 to 2017
6. Delay Cadillac tax from 2025 now pushed out to 2026
7. Repeal the maximums and over the counter medication bans on Flexible Spending Accounts from 2018 to 2017
8. Increase the HSA limits to maximum out of pocket costs from 2018 to 2017
What does this all mean? Well, to be absolutely frank – not much, if they don’t have the votes today. What does it mean in the future, though, EVERYTHING.
I don’t think you will find someone who doesn’t think we have work to do on the ACA. I am the first to say it. I also think that we have to get a bi-partisan committee to work together with consumer groups; AARP; AHIP; AHA; AMA and the healthcare consulting (i.e. the broker) community. We are in the battle on a daily basis. We know what can work and what should work and this needs to be done right and it needs to be done soon.
There are good ideas out there and we have to approach this on a more macro level and look at the outside forces that are affecting the current delivery system, i.e. lowering the cost of pharmaceuticals by introducing competition; providing incentives for smaller companies to do more development on generic alternatives; banning pharmaceutical companies from shelving generic patents when they become available; more efficient medical record data sharing; cutting out redundancy; providing affordable medical malpractice insurance programs to incent OBGYNs and other speciality providers who want to provide care but can’t afford the malpractice premiums; identifying high-cost chronic conditions and look at possibly pooling them into a national program such as Medicare, as we do with End Stage Renal Disease; providing TRANSPARENCY to the consumer by giving them the means to shop for a procedure with outcomes and cost as easily as they can today with houses; technology and cars; getting more funding and education to fight the opioid epidemic.
We cannot continue to kick the can down the road, adjust the programs to suit a small group of interest. The health of this country is at stake; the health of its citizens are at stake and millions of jobs are at stake. We need to pull this out of the halls of Congress and get the experts, who manage this, at the table now before it is too late.
There are solutions, there is a way – but we have to do this together with experts and support it as a country. This is one thing neither party should own but every party should want to see succeed.
Pulling the plug on Healthcare in the US – Dissecting the Regular Facts from the Alternative Facts
Dismantling the employer option . . . and then there were none
There is a well known English nursery rhyme by Mother Goose, about an egg that sat on a wall and had a great fall. All the king’s horses and the all king’s men could not put that poor egg back together again.
As we have been following the repeal and replace of the Affordable Care Act (ACA) or aka – Obamacare, the elimination or capping of the employer tax-exclusion on employer sponsored benefit programs, has been brought up again. This idea has been floating around for the last couple of years as a way to increase revenue and now looked at as one potential revenue funding option in a replacement to the current Affordable Care Act (ACA).
So what is the employer tax – exclusion? Currently employees are NOT taxed on the employer paid portion of their benefits for income and payroll tax purposes. Under this new regulation, the employer paid portion of premiums could end up being considered taxable income. In addition, the employer could face higher FICA (Federal Insurance Contributions Act) matches, which would be an added financial burden to the employer.
FICA is made up of the employer and employee both contributing equal shares of Social Security Tax (6.2%); Medicare Tax (1.45%) for a total of 12.4% and 2.9% respectively. Currently there is a cap on Social Security, so once you have paid this tax on $127,200, you no longer pay the 6.2% Social Security tax. You can find more information on this and additional taxes HERE.
We are sitting in a precarious situation if we start to look changing or altering the current employer model, as part of the repeal and replace. The Kaiser Foundation has data showing 156 million Americans covered through employer based plans through the end of 2015. As of 2017, approximately 175 million Americans receive healthcare through the employer based model.
Remember the risk pools? The employer based market is heavily involved in helping to balance risk pools by spreading out the costs of the healthy and unhealthy covered employees.
If the employer has no incentive to offer these benefits to their employees, or they end up costing both the employee and the employer more money, the employer could easily have their employees go to the individual marketplace to purchase their coverage by offering a salary increase to the employee to offset some of the costs. This would mean higher income taxes to the employee. The costs in the individual market are higher; the choices are lower and employees would lose the benefit of having their employer advocate in coverage disputes.
If Congress decided, instead, to cap the employer-tax exclusion, this would in turn, cause the employer to look at providing less rich benefit to employees, to stay underneath the maximum premium cap so not to trigger a tax. This would push employees to higher out of pocket costs and possibly shift the cost of the premium from the employer to the employee at a faster rate then we are seeing today.
The employer-sponsored health insurance is a valuable benefit and a keystone to the American worker and a financial foundation for the healthcare system today. If we attempt to upset this model, while undergoing additional repeal and replacement options, we run the risk of the entire system breaking, just like that egg. And there is not a king nor a horse strong or powerful enough to be able to pick it up, once the system has fallen off the wall.
Dismantling the employer option . . . and then there were none
Senate Republican Leaders Vow to Begin Repeal of Health Law Next Month
THE NEW YORK TIMES
By ROBERT PEAR
DEC. 6, 2016
WASHINGTON — Senate Republican leaders, after meeting with Vice President-elect Mike Pence, said on Tuesday that they would move immediately next month to start repealing the Affordable Care Act, despite qualms among some of their members.
“The Obamacare repeal resolution will be the first item up in the new year,” said Senator Mitch McConnell, Republican of Kentucky and majority leader.
Republicans have not fleshed out a plan to replace the 2010 health care law, President Obama’s signature legislative achievement. But on Tuesday they laid out their principles for a replacement plan and said they would try to minimize disruption for the 20 million people who have gained coverage under the law.
Senate Republican leaders appeared to agree with House Republican leaders on a “repeal and delay” strategy, which could keep parts of the health law in place for several years, as Congress works with the administration of Donald J. Trump to devise a replacement.
The Senate Republican strategy would start the repeal process in early January and could defer the effective date for several years, but not all party members were on board.
“They have to be done together,” said Senator John McCain, Republican of Arizona, referring to efforts to repeal and replace the health law. “We don’t want to have people left out.”
Democrats vowed to fight for preservation of the health law, on which public opinion has been deeply divided for six years.
“Bring it on!” Senator Chuck Schumer of New York, the next Democratic leader, said to Republicans. “Just repealing Obamacare, even though they have nothing to put in its place, and saying they’ll do it sometime down the road will cause huge calamity from one end of America to the other.”
Many health policy experts say the law has been beneficial. But Senator John Thune of South Dakota, the No. 3 Senate Republican, said: “It’s well documented, everybody agrees, both Republicans and Democrats, that Obamacare has serious problems. I would say it’s been a failure, and I think the American people agree.”
After repealing the law, Mr. Thune said, Republicans will proceed step by step to develop a replacement, built around four principles: States, not the federal government, should have the primary responsibility for health policy. Patients and doctors should be “in control.” There should be more competition among health plans, so consumers would have more choices. And small businesses should have more discretion and flexibility to configure health benefits for their employees.
After their lunch on Tuesday with Mr. Pence, many Senate Republicans were energized. After the inauguration of Mr. Trump, the schedule will be “very aggressive,” said Senator Michael Rounds, Republican of South Dakota.
But other Republican senators were still mulling their strategy.
Senator Bob Corker, Republican of Tennessee, suggested that it might make sense to repeal and replace the heath law at the same time, and that there could be pitfalls in deferring a replacement for several years.
“People are trying to figure out the best route,” Mr. Corker said. “It’s not really repeal if it’s still in place for three years.”
Senator John Barrasso of Wyoming, a member of the Senate Republican leadership, said Congress would need time to develop a replacement.
“Health care has been driven into the ditch by President Obama and this health care law,” Mr. Barrasso said. “It will take time to get the cart out of the ditch.”
Senator Susan Collins, Republican of Maine, said she supported efforts to repeal and replace the health law, but not Republican efforts to cut off federal funds for Planned Parenthood clinics. Last December, she voted against a budget bill that would have repealed major provisions of the health law because it would also have terminated funds for Planned Parenthood.
“Under the incoming administration, Republicans and Democrats will have a new opportunity to fix Obamacare, and there is a lot to fix,” Ms. Collins said on Tuesday, noting that premiums for health plans on the exchange in her state were increasing an average of 22 percent next year.
Donald Trump and GOP Lawmakers Turn to Health Law Overhaul
Focus turns to goal of replacing the Affordable Care Act
THE WALL STREET JOURNAL
By Stephanie Armour and
Congressional Republicans and President-elect Donald Trump are in agreement: The Affordable Care Act as it now stands is over.
On the day after the election, the focus turned quickly to the long-sought GOP goal of gutting the law and installing a replacement. Discussions are under way about what aspects to keep, what programs to kill, and how to create some sort of transitional plan to cushion the blow to consumers who now get coverage under the health law.
Both House Speaker Paul Ryan (R., Wis.) and Senate Majority Leader Mitch McConnell (R., Ky.) in postelection news conferences on Wednesday said addressing the law is a priority.
The immediate repeal Mr. Trump vowed is unlikely, however. One top Senate staffer said some time will be needed to build party consensus. And then there is the potential for a public backlash if millions of people suddenly lose health coverage. To that end, Mr. Trump has acknowledged the need for some sort of transition process.
Mr. Trump could topple parts of the law before Congress becomes involved, smoothing a legislative path for deeper repeal work. Rep. Michael Burgess (R., Texas), a physician and an influential GOP lawmaker on health policy, said he is eager to see Mr. Trump use executive action on this first day to weaken the law’s requirement that individuals buy health coverage or pay a penalty.
That change could be possible under a provision of the law that gives the federal government flexibility in creating exemptions from the penalty for people who want to forgo insurance, he said. Striking that down could spur insurers to re-evaluate their participation and encourage them to engage in negotiations about the future of the law.
Without 60 votes in the Senate to get around procedural hurdles, Republicans couldn’t repeal the whole law in one shot but could take out pillars of it using a budget maneuver that requires only a simple majority.
One target would be subsidies that blunt the cost of premiums for people who get coverage on the health law’s exchanges, said Timothy Jost, a professor at Washington and Lee University School of Law. Without a transition plan, 85% of exchange consumers who get subsidies would face the full cost of their premiums, prompting a major drop-off in participation.
The employer mandate that requires many companies with 50 or more full-time workers to provide health insurance also would likely go.
The transition time Republicans are discussing may help stave off a backlash if subsidies are immediately cut off and millions lose coverage, and it could give the GOP time to negotiate with hospitals and insurers that have supported and benefited from the ACA and now are concerned about major new financial burdens.
“I think they know you can’t yank the rug out from people,” said Molina Healthcare Inc. Chief Executive J. Mario Molina.
And during the months before the inauguration, the current Obama administration may try to push through regulations that would make dismantling the law more difficult. Those could include more changes to how providers are paid on patient outcome versus volume, for example.
Mr. Trump also could end parts of the health law without turning to Congress. He could drop the government’s appeal on a House lawsuit that challenges funding for cost-sharing subsidies to exchange consumers. Without those payments to help offset deductibles and out-of-pocket costs, more insurers likely would drop their participation on the marketplaces. The exchanges, a centerpiece of the health law, would further wither.
Mr. Trump also has pledged to shift Medicaid to a block grant program with capped funding, with greater flexibility for states in administering it. That would allow states to enact conservative changes to the program, often in the form of tougher rules for beneficiaries and for the 31 states that have extended eligibility to most low-income residents.
Republicans and Mr. Trump will have to work together on fashioning the law’s replacement, and some have said they hope to work with Democrats to find common ground.
Republican Senate Finance Committee Chairman Orrin Hatch of Utah said that they will “continue to work towards replacing Obamacare with common-sense reforms that will lower cost and increase choice.”
Future proposals will aim to tackle rising health-insurance premiums and increase patient choice, GOP officials said. Mr. Trump’s plan is scant on details but includes selling insurance across state lines and repealing Medicaid expansion. An ACA replacement plan backed by Mr. Ryan holds on to key aspects of the current law such as providing coverage for people with pre-existing conditions.
The hard work of hammering out a replacement will now begin but analysts say the plans to eviscerate most of the law will create a period of unprecedented chaos that will ripple throughout the health-care industry, said many executives.
“The result of Tuesday’s election will shape national policies for years to come,” said Rick Pollack, president and chief executive of the American Hospital Association, which supported the ACA. “With the election now behind us, we must pivot from politics to governance.”
Final 1095-C 2016 Forms and Instructions for IRS Reporting Requirements
On October 3, 2016, the Internal Revenue Service (IRS) released final 2016 Forms 1094-C and 1095-C and their accompanying instructions. These forms and instructions will be used for Affordable Care Act (ACA) Applicable Large Employer reporting (for compliance with the ‘employer mandate’) and self-insured large group Minimum Essential Coverage (MEC) reporting for coverage offered in calendar year 2016.
In September 2016, the IRS released final 2016 Forms 1094-B and 1095-B and the applicable instructions for insurance carriers and small employers who self-insure their group health plans to report MEC.
Changes to Form 1094-C are minimal from the 2015 Forms. The most notable changes include:
• Line 22 is “Reserved,” as it pertained to the “Qualifying Offer Method Transition Relief,” which is not applicable to 2016 coverage.
• Part III, column (b) includes a new distinction, “Section 4980H” before “Full-Time Employee Count for ALE Member.” This is intended to remind filers that only the section 4980H definition of “full-time employee” should be used in this column (no other definition can be used).
Changes to Form 1095-C are also minimal from the 2015 Forms, but include these more prominent updates:
• New language below the form title states “Do not attach to your tax return. Keep for your records.” This is intended to help prevent individuals from submitting the form with their tax return.
• Line 15 has a revised header, “Employee Required Contribution (see instructions).”
• Lines 14 and 16 have certain codes “Reserved,” as they no longer apply to 2016 coverage, and new codes (1J and 1K) have been added to Line 14.
• Transition relief available to employers for 2015 under sections 4980H and 6056 has limited applicability in 2016. References to transition relief that applied only in 2015 have been removed. Descriptions of the remaining forms of transition relief have been amended to clarify for which months in 2016 the transition relief applies (description and when it applies is available in Section 4980H Transition Relief for 2015 Plan Years).
The 2016 IRS Forms 1094-B and 1095-B have similar changes for reporting 2016 coverage in 2017. The instructions for both sets of forms include applicable code information to help ensure correct reporting for each line item.
Instructions for Froms 1094-C and 1095-C, used by applicable large employers, i.e., those subject to the employer mandate. Self-insured plan sponsors complete the entire Form 1095-C:
Form 1094-C (a transmittal/cover sheet) to the IRS:
Form 1095-C to both the IRS and individuals. Applicable large employers with insured plans will only complete Parts I and II of Form 1095-C:
Marketplace Appeals — The Results Are Coming In
At the risk of sounding like Nick Cannon on the television show America’s Got Talent when they’re announcing performers advancing to the next round of competition, employers are beginning to see the results of appeals that they’ve filed when employees receive subsidies in the marketplace. Employers are finding some of these appeal decisions perplexing, especially when an appeal is denied. And, some employers fear that penalties will follow as a result of the lost appeal.
First, and of most importance, the marketplace appeal does not determine if an employer has to pay an employer shared responsibility penalty to the IRS. This point is made clear on both the appeals form and on the webpage that addresses employer appeals: https://www.healthcare.gov/marketplace-appeals/employer-appeals/
Second, an appeal that is denied may be due to the particular facts and circumstances of the employee and his/her family. In particular, even though an employer may have offered coverage that meets the minimum value and affordability safe harbors, the measure of affordability at the marketplace is based on household income. Household income may be quite different from an employee’s W-2 income. The marketplace’s decision regarding an employer’s appeal will not reveal personal and income information of the employee subject to the appeal.
The appeal decision letter explains that the marketplace will not consider whether an employee is a full-time employee or whether the employer employs 50 or more full-time employees and is subject to the employer shared responsibility payments. The reasoning cited in the letter is that “neither of these issues affect the employee’s eligibility for advance payments of the premium tax credit and cost-sharing reductions (if applicable).
Another employer found that the information which the employer sent to support their appeal did not go far enough. The employer submitted proof that the employer had offered coverage to the employee that met minimum value and was affordable. The hearing officer wanted proof of this offer in the form of the employee’s response to the offer. Employers that have been reluctant to require that employees sign waivers when they decline coverage may decide to require signed waivers or take other steps that can buttress the fact that an offer was made and rejected.
A review of several decision letters finds that decisions often cite “insufficient information” as the basis for the decision to reject the appeal. Employers may want to develop a checklist of materials that they will provide to ensure that appeals are not lost for want of more information.
Still other employers have received a letter while an appeal is under review that asks for more information to support the appeal.
While marketplace appeal decisions are not triggers for IRS penalties, a successful marketplace appeal may be helpful if the IRS does attempt to penalize an employer. The successful appeal would be another piece of information for an employer to include in the IRS appeal’s process. And, whether an appeal is successful at the marketplace level, or not, an employer will have already collected information that would be required to appeal an IRS penalty determination should one be received.