How millions were left behind by ACA’s ‘family glitch’

The 'family glitch’ has stranded 2-6 million Americans, leaving them ineligible for the Affordable Care Act's subsidies.

Most employers that offer health insurance tend to be quite generous when it comes to subsidizing the cost of their employees’ premiums. And although many also pay a large portion of the cost to add dependents to the plan, it’s not uncommon to see a plan that requires significant employee contributions to cover dependents.

Over the years, many of our clients have purchased individual health insurance for their spouse and children specifically because their employer-sponsored plan became unaffordable when they added dependents.

Prior to 2014, individual health insurance in most states was much less expensive than it is now (not counting subsidies), but that’s because the coverage was less comprehensive, and also because eligibility hinged on an applicant’s medical history. So healthy families were able to purchase individual coverage for the spouse and children, while taking advantage of the employer subsidy that offset a good chunk of the employee’s premium. If medical issues were present though, the options were much more limited.

Thanks to the Affordable Care Act, that’s no longer the case, as medical history is not a factor in determining eligibility for coverage in the individual market. But the net price of individual health insurance varies considerably depending on whether an applicant qualifies for premium subsidies.

‘Glitch’ makes families ineligible for subsidies

We still get calls on a regular basis from people who are shopping for individual insurance because adding dependents to their employer plan is prohibitively expensive. We estimate that roughly 20 percent of the people who contact us are in this situation.


Sen. Al Franken introduced legislation in 2014 that would have provided relief from the ‘family glitch’ by applying the ACA’s affordability test to the entire premium that a worker must pay for family coverage. Fellow Dems have followed suit in recent years, but nothing has advanced while the GOP controls Congress.

Unfortunately, due to a “glitch” in the ACA, they are not eligible for premium subsidies in the exchange if the amount the employee has to pay for employee-only coverage on the group plan is deemed “affordable” – defined as less than 9.56 percent of household income in 2018. (This will increase in 2019, to 9.86 percent).

It doesn’t matter how much the employee would have to pay to purchase family coverage. The family members are not eligible for exchange subsidies if the employee could get employer-sponsored coverage just for him or herself, for less than 9.56 percent of the household’s income (9.86 percent in 2019). As long as the employee’s portion of the premium is affordable, the cost for the family could end up being 25 percent — or more — or their household income and they’d still have no access to premium subsidies. They can either pay full price in the individual market, or pay whatever the employer requires to cover the family on the employer’s plan, despite both options being financially unrealistic.

This issue – known as the “family glitch” – was clarified by the IRS in a final rule published in early 2013, based on the language of the ACA. There are two main sections of the law that are involved: 36B deals with subsidies, and 5000A deals with the individual mandate and penalty.

In 36B, the law states that an employer plan is affordable as long as the employee’s required contribution doesn’t exceed 9.5 percent of income (but that’s indexed annually; it’s 9.56 percent in 2018 and 9.86 percent in 2019. And to clarify “required contribution” we’re referred to the definition in 5000A, which states that it’s the amount that must be paid for self-only coverage.

When the IRS issued their final rule, the agency noted that some commenters had suggested that the earlier proposed regulation be modified to define the employee’s contribution as the total amount the employee must pay for family coverage. But ultimately the final rule was issued without changing the definition of the employee’s required contribution.

Health Affairs explains that this was not an accident or oversight — it was carefully considered and the final regulation was delayed while the Government Accountability Office and the IRS analyzed the impact of the decision. There were concerns that employers would increase the contributions required to enroll family members, which would push more people off employer plans and into the exchanges, driving up the total cost of subsidies. Ultimately, those concerns prevailed and the “family glitch” was born.

The ‘glitch’ and employer-sponsored plans

The family glitch relies on minuscule bits of text within the ACA rather than the broad scope and intent of the law. The overarching goal of Obamacare was to expand access to health insurance, and to make it affordable. Yet the ruling on what constitutes “affordable” employer-sponsored coverage does nothing to make health insurance affordable or accessible for low- and moderate-income families whose employers don’t subsidize a significant portion of dependents’ coverage.

Under the ACA, employers with 50 or more full-time equivalent employees are required to offer coverage to their employees and to their employees’ children, but not to spouses – although it’s still relatively rare for companies to exclude spouses. If an employer plan doesn’t cover spouses at all, the spouse is eligible to get subsidies in the exchange based on income. (There’s no “glitch” for the spouse if the employer coverage simply isn’t available to the spouse).

And if large employers don’t make the coverage affordable for the employee (self-only coverage) and the employee then obtains a subsidy in the exchange, the employer is subject to a penalty. So there is an incentive for employers to make sure that they are subsidizing a good chunk of the employee’s premium.

But while large employers are required to offer health coverage to employees’ children (and most also do so for spouses), there is no requirement that the employer pay for that coverage, because the cost of the dependents’ coverage is not factored into the “affordable” calculation. Many companies go above and beyond, subsidizing a large portion of dependents’ health insurance premiums (in 2018, the average employer pays nearly 72 percent of total family premiums). But not all of them do.

Affected families are disproportionately lower-income

Somewhere between two million and 6 million people are impacted by the family glitch. They are disproportionately lower-income, because lower-wage workers have to spend a larger percentage of their income to pay for health insurance if subsidies aren’t available, and because higher-income workers are more likely to work for companies that heavily subsidize coverage for dependents.

Fortunately for many of the families caught by the glitch, Children’s Health Insurance Program (CHIP) provides coverage for children with household incomes well over 200 percent of poverty in most states. CHIP funding expired for a few months in the fall of 2017, but by early 2018 the issue had been resolved, with CHIP funding secured for a full decade, through the end of 2027 (in comparison, the previous CHIP renewal, in 2015, had only extended funding for the program for two years).

Most of the ACA’s regulations apply to individual and small group plans, because for the most part, large group plans were already offering solid coverage prior to 2014. Not all large groups were offering coverage though – particularly those with low-wage workers – and now they’re required to do so. In order to be compliant with the employer mandate, a large group plan has to be both affordable (for the employee) and provide minimum value. But for families that have the option to enroll in an employer plan – large or small – that does provide minimum value, the choice can sometimes come down to a rock or a hard place, with no way to purchase coverage that’s actually affordable for the whole family.

It’s small consolation, but people caught in the family glitch are not subject to the ACA’s individual mandate penalty if the only plans available to them cost more than 8.05 percent of their income in 2018 (the individual mandate penalty will be eliminated altogether as of 2019). For most people though, having realistic access to health insurance would be far preferable to simply avoiding the penalty while remaining uninsured.

In 2014, then-Senator Al Franken introduced the Family Coverage Act, which would have adjusted the law so that the affordability test would be applied to the entire premium that a worker must pay for family coverage, not just employee-only coverage. This would cost the government more in subsidies, but it would dramatically improve access to health insurance for the people who are currently without any reasonably priced options because of the family glitch. The bill never progressed beyond committees though, and lawmakers seemed hesitant to fix the family glitch, given the additional burden it would place on the taxpayer-funded subsidy program.

Hillary Clinton proposed fixing the family glitch as part of her 2016 presidential campaign, but she lost the election and Congress remained under GOP control after the 2016 elections. Bills have been introduced in the House and in the Senate in 2018 that would fix the family glitch, but neither has progressed.

But Democrats will have control of the House as of January 2019, and manageable fixes to the ACA — which have been on Democrats’ short list for years — are likely to be a priority. Fixing the family glitch is among them, although it’s estimated that it would increase federal spending by at least $4 billion, and by as much as $9 billion (the difference in cost depends on whether the whole family would become eligible for premium subsidies in the individual market, or just the employee’s spouse and/or dependents). Republicans still control the Senate, so even if legislation were to pass in the House, it’s unclear whether Democrats in the Senate could get enough bipartisan support to pass legislation to fix the family glitch. But fixing the family glitch is certainly more within the realm of possibility with a Democratic majority in the House.

Louise Norris is an individual health insurance broker who has been writing about health insurance and health reform since 2006. She has written dozens of opinions and educational pieces about the Affordable Care Act for Her state health exchange updates are regularly cited by media who cover health reform and by other health insurance experts.

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