By: Brady Bizarro, Esq. To say that Massachusetts is a pioneer in healthcare reform is an understatement. Ever since the Commonwealth enacted a healthcare reform law that aimed to provide health insurance to all of its residents over a decade ago, policymakers planned to use elements of that law to build the foundation for national healthcare reform. One of those elements was an employer mandate, called the Fair Share Contribution, which required certain employers in the Commonwealth to provide group health benefits or face a $295 per employee fee. In 2014, Massachusetts lawmakers repealed the Fair Share Contribution. This was done because the Affordable Care Act’s (“ACA”) employer mandate was scheduled to take effect (after a delay). Massachusetts legislators still wanted the revenue the Fair Share Contribution generated, however, so it enacted a new law, called the Employer Medical Assistance Contribution (“EMAC”). EMAC is a tax on employers with more than five employees and it applies whether or not the employer offers health coverage to its employees. This act was meant to subsidize the Commonwealth’s Medicaid program, called MassHealth, and the state’s Children’s Health Insurance Program (“CHIP”). Since 2011, approximately 450,000 people have lost their employer-sponsored insurance in Massachusetts. In the same time period, MassHealth enrollment increased by just over 500,000. The MassHealth program is literally drowning the state in debt, and so last year, Governor Charlie Baked signed H. 3822, which has two major components (beginning in 2018): • It increases the EMAC tax from a max of $51 per employee per year to $77 per employee per year; and • It imposes a tax penalty or EMAC Supplement on employers with more than five employees of up to $750 per employee per year for each nondisabled employee who receives health insurance coverage through MassHealth or subsidized insurance through the Massachusetts Health Connector (ConnectorCare). Since the calculation is based on wages and not hours worked, an employer is subject to the penalty for each employee on MassHealth (excluding the premium assistance program) or receiving subsidized care through ConnectorCare regardless of full-time or part-time status. If the employee is enrolled in MassHealth due to a disability, they are not counted. This legislation should be concerning for Massachusetts employers for a few reasons. First, if an employee chooses to voluntarily forgo an offer of coverage and instead applies and qualifies for MassHealth (excluding the premium assistance program) or subsidized ConnectorCare, the employer is penalized irrespective of the quality or affordability of the coverage that is offered. There is no exemption similar to that provided under the ACA employer mandate under which an applicable large employer (“ALE”) can escape tax exposure by offering coverage that is affordable and provides minimum value. But note that where an employer offers coverage that is both affordable and provides minimum value (as most do per ACA requirements), that employee would not be eligible for subsidized ConnectorCare coverage. Therefore, the EMAC Supplement really only applies to EEs who qualify for and enroll in MassHealth. Second, since employers are advised against asking an employee whether or not they are on Medicaid, the employer will not know its liability until the state’s Department of Unemployment Assistance sends them a letter informing them of their tax liability. As states across the country feel the pinch of reduced federal funding, they may once again look to Massachusetts as a model to control costs to their Medicaid programs. In this case, however, employers will be squarely in the crosshairs.