The Patient Protection and Affordable Care Act (the “Act”) imposes new obligations—referred to as “employer shared responsibility” standards (a/k/a “pay-or-play” requirements) — on employers with 50 or more full-time equivalent employees. These rules, which are set out in newly added Internal Revenue Code § 4980H, will increase administrative burdens for all affected employers and increase costs for many or most. The Act also imposes comprehensive new requirements on health insurance issuers in the individual and group markets and group health plans maintained by all employers irrespective of size. These requirements include a limit of 90 days on the maximum length of waiting periods that plans may impose. The 90-day waiting period limitation appears in newly added Public Health Service Act § 2708. It is also incorporated by reference into both the Employee Retirement Income Security Act and the Internal Revenue Code. As a result, the limitation applies to health insurance issuers and to group health plans in the public and private sectors, including church-sponsored plans.

Two recent guidance items shed light on the application of the employer shared responsibility rules and the 90-day waiting period limitation.