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IRS unrelated business taxable income update: The good news and the missing news

04.29.20

Read this if you are a tax-exempt organization.

The IRS recently issued proposed regulations (REG-106864-18) related to Internal Revenue Code Section 512(a)(6), which requires tax-exempt entities to calculate unrelated business taxable income (UBTI) separately for each unrelated trade or business carried on by the organization.

For years beginning after December 31, 2017, exempt organizations with more than one unrelated trade or business are no longer permitted to aggregate income and deductions from all unrelated trades or businesses when calculating UBTI. In August 2018, the IRS issued Notice 2018-67, which discussed and solicited comments regarding various issues arising under Code Section 512(a)(6) and set forth interim guidance and transition rules relating to that section. 

The good news
The new proposed regulations expand upon Notice 2018-67 and provide for the following:

  • An exempt organization would identify each of its separate unrelated trades or businesses using the first two digits of the NAICS code that most accurately describes the trade or business. Activities in different geographic areas may be aggregated.
  • The total UBTI of an organization with more than one unrelated trade or business would be the sum of the UBTI computed with respect to each separate unrelated trade or business (subject to the limitation that UBTI with respect to any separate unrelated trade or business cannot be less than zero). 
  • An exempt organization with more than one unrelated trade or business would determine the NOL deduction allowed separately with respect to each of its unrelated trades or businesses.
  • An organization with losses arising in a tax year beginning before January 1, 2018 (pre-2018 NOLs), and with losses arising in a tax year beginning after December 31, 2017 (post-2017 NOLs), would deduct its pre-2018 NOLs from total UBTI before deducting any post-2017 NOLs with regard to a separate unrelated trade or business against the UBTI from such trade or business. 
  • An organization's investment activities would be treated collectively as a separate unrelated trade or business. In general, an organization's investment activities would be limited to its:
     
    1. Qualifying partnership interests
    2. Qualifying S corporation interests
    3. Debt-financed property or properties 

Organizations described in Code Sec. 501(c)(3) are classified as publicly supported charities if they meet certain support tests. The proposed regulations would permit an organization with more than one unrelated trade or business to aggregate its net income and net losses from all of its unrelated business activities for purposes of determining whether the organization is publicly supported. 

The missing news: Unaddressed items from the new guidance
With the changes provided by these proposed regulations we anticipate less complexity and lower compliance costs in applying Code Section 512(a)(6). While this new guidance is considered taxpayer friendly, the IRS still has more work to do. Items not yet addressed include:

  • Allocation of expenses among unrelated trade or businesses and between exempt and non-exempt activities.
  • The ordering rules for applying charitable deductions and NOLs.
  • Net operating losses as changed under the CARES Act.

The IRS is requesting comments on numerous key situations. Until the regulations are finalized, organizations can rely on either these proposed regulations, Notice 2018-67, or a reasonable good-faith interpretation of Code Sections 511-514 considering all the facts and circumstances.
We will keep you informed with the latest developments.

If you have any questions, please contact the not-for-profit consulting team

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Did you know that there was more than a 40% increase (from $4.3 billion to $6.0 billion) in civil penalties assessed by the IRS regarding employment tax, for the 2016 fiscal year?

A recent report from the Treasury Inspector General for Tax Administration calls for more cases to involve criminal investigation by the Department of Justice. This is significant because the requirements needed to prove a civil violation under Sec. 6672 are nearly identical to the requirements of a criminal violation under Sec. 7202, and a criminal violation can result, among other penalties, in imprisonment for up to five years.

The issue of employment taxes encompasses all businesses, even tax-exempt entities. For fiscal year 2016, employment tax issues were involved in over 26% of audits of exempt organizations. One main reason why employment tax is a major issue? Its role in funding our government: employment taxes make up $2.3 trillion dollars (70%) of the $3.3 trillion dollars collected by the IRS for fiscal year 2016.

And noncompliance is a major issue, with roughly $45.6 billion of unemployment taxes, interest and penalties still owed to the IRS as of December 2015. This trend of increasing noncompliance, combined with the vital role employment taxes has in funding our government helps explain why the IRS has increased focus and enforcement in this area.

Should your independent contractor truly be an employee? Did you properly report fringe benefits as taxable income to the individuals who received them? Knowing the answers to these questions can help you stay in compliance with the law. If you have any questions about your employment tax situation, or how we can help you ensure compliance on this and other tax issues, please contact your BerryDunn tax advisor.
 

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The IRS cares about employment tax—why you should too.

Many of my hospital clients have an increased incidence of providing temporary housing for locums, temps and some employees and, as a result, have questions regarding the proper tax reporting to these individuals.   

First things first: the employment status of the individual needs to be determined before anything else.

If the person is an independent contractor (for example, a locum paid through an agency), a Form 1099-Misc usually needs to be filed for payments made to the individual (or agency) of $600 or more. A 1099-Misc is not required in the following circumstances:

  • The payment is made to a corporation or a tax-exempt organization.
  • Payments for travel reimbursement are excluded as long as they are paid under an accountable plan (which itself can be another topic for a blog). For example, an independent contractor submits a timely expense report to you with their lodging receipts for reimbursement. The amounts for the expense reimbursement do not have to be included on the 1099-Misc. If you pay the travel expenses directly or provide the housing, you also do not have to include these payments on the 1099-Misc.

If the individual is an employee, you should follow the guidance in IRS Publication 15-B, which can be found on www.irs.gov.

The basic rule of thumb is that every fringe benefit provided to an employee is a taxable benefit unless there is an exclusion listed in Publication 15-B.

The lodging exclusion begins on page 15 (of the 2016 publication), and there is an example regarding a hospital listed near the bottom of that page in the left column. For lodging to meet the exclusion, it must pass three tests:

  1. The lodging must be furnished on your business premises. I’ve seen some guidance that allowed the exclusion when the lodging was in close proximity to the business premise (within a mile, etc.).
     
  2. The lodging is furnished for the employer’s convenience. The employer furnishing the lodging to the employee must have a substantial business reason for doing so other than to provide the employee with additional pay. For example, the employee is on call for emergencies 4 or 5 days a week, so must live in close proximity to the hospital.
     
  3. The employee must accept the lodging as a condition of employment. The employer must require the employee to accept the lodging because they need to live on your business premises to be able to properly perform their duties. We recommend including this condition of employment directly in the employee’s written employment contract.

If lodging does not meet all three of these tests, then it must be treated as a taxable fringe benefit with the appropriate payroll taxes withheld from the employee’s pay.

If you are also providing meals, the discussion on employer-provided meals also begins on page 15 of Publication 15-B, with the discussion for meals provided on your business premises starting on page 16.

A discussion related to transportation benefits begins on page 18. We have also had some questions from clients regarding transportation. For example, one client had an employee who dropped down to part-time status and moved from Maine to Florida. The employee agreed to continue working at the hospital one week a month, and the hospital agreed to pay for the flight back and forth. The individual continued to be treated as an employee. The flight is the employee’s commuting expense, and there is no exclusion for reimbursement of commuting expenses. Therefore, the flights had to be included in the employee’s compensation and reported on his W-2.

Many of these taxable benefits are being paid through an accounts payable system rather than payroll, and so can be easily missed. Withholding for these benefits at each pay period is much easier to accomplish rather than all at once at year end. It’s important for your HR department to communicate with the payroll office whenever unusual employment terms and benefits are being offered to employees to ensure proper tax treatment.

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When it comes to temporary housing for hospital employees, IRS publication 15-B can be your friend

Read this if you are an employee benefit plan fiduciary.

This article is the second in a series to help employee benefit plan fiduciaries better understand their responsibilities and manage the risks of non-compliance with Employee Retirement Income Security Act (ERISA) requirements. In our last article, we looked into the background of ERISA, which established important standards for the sound operation of employee benefit plans, as well as who is and isn’t a plan fiduciary, and what their responsibilities are. 

One important ERISA provision, found in Section 406(a), covers the types of transactions a plan fiduciary can and can’t engage in. ERISA terms the latter prohibited transactions, and they’re a lot like traffic lights—when it comes to avoiding conflicts of interest in business dealings, they’re your guide for when to stop and when to go. By knowing and abiding by these rules of the road, plan fiduciaries can steer clear of tickets, fines, and other damaging mishaps. 

Parties-in-interest—keep them out of the passenger seat 

Much like driver’s ed., fiduciary responsibility boils down to knowing the rules—plan fiduciaries need to have a strong working knowledge of what constitutes a prohibited transaction in order to ensure their compliance with ERISA. The full criteria are too detailed for this article, but one sure sign is the presence of a party-in-interest.

ERISA’s definition of a party-in-interest

The definition includes any plan fiduciary, the plan sponsor, its affiliates, employees, and paid and unpaid plan service providers, and 50%-or-more owners of stock in the plan sponsor. If you’d like to take a deeper dive into ERISA’s definition of parties-in-interest, see “ERISA's definition of parties-in-interest" at right.

Prohibited transactions—red lights on fiduciary road 

Now that we know who fiduciaries shouldn’t transact with, let’s look at what they shouldn’t transact on. ERISA’s definition of a prohibited transaction includes: 

  • Sale, exchange, and lease of property 
  • Lending money and extending credit 
  • Furnishing goods, services, and facilities 
  • Transferring plan assets 
  • Acquiring certain securities and real property using plan assets to benefit the plan fiduciary 
  • Transacting on behalf of any party whose interests are adverse to the plan’s or its participants’ 

Transacting in any of the above is akin to running a red light—serious penalties are unlikely, but there are other consequences you want to avoid. Offenders are subject to a 15% IRS-imposed excise tax that applies for as long as the prohibited transaction remains uncorrected. That tax applies regardless of the transaction’s intent and even if found to have benefited the plan. 

The IRS provides a 14-day period for plan fiduciaries to correct prohibited transactions and avoid associated penalties. 

Much like owning a car, regular preventative maintenance can help you avoid the need for costly repairs. Plan fiduciaries should periodically refresh their understanding of ERISA requirements and re-evaluate their current and future business activities on an ongoing basis. Need help navigating the fiduciary road? Reach out to the BerryDunn employee benefit consulting team today. 
 

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Prohibited transactions: Rules of the road for benefit plan fiduciaries

Read this if you are a residential living facility.

At the end of last year, Congress and the IRS brought about changes to the application of the business interest expense deduction limitation rules with regard to taxpayers that wish to make a real property trade or business (RPTOB) election. This change may benefit owners and operators of qualified residential living facilities. Here’s what we know.

Background

Section 163(j) generally limits the amount of a taxpayer’s business interest expense that can be deducted each year. The term “business interest” means any interest that is properly allocable to a “trade or business,” which could include an electing RPTOB. The term “trade or business” has not been separately defined for purposes of Section 163(j), however, it has been defined for purposes of the passive activity loss rules under Section 469(c)(7)(C) as any real property development, redevelopment, construction, reconstruction, acquisition, conversion, rental, operation, management, leasing or brokerage trade or business.

In general, a taxpayer engaged in a trade or business that manages or operates a “qualified residential living facility” may elect to be treated as an RPTOB solely for the purpose of applying the interest expense rules under Section 163(j). Taxpayers that make an RPTOB election to avoid being subject to the business interest deduction limitation under Section 163(j) must use the alternative depreciation system (ADS) to compute depreciation expense for property described in Section 168(g)(8), which includes residential rental property.

In Notice 2020-59, issued on July 28, 2020, the IRS and Treasury proposed a revenue procedure providing a safe harbor for purposes of determining whether a taxpayer meets the definition of a qualified residential living facility and is therefore eligible to make the RPTOB election. Following review of comments submitted in response to Notice 2020-59, the Treasury Department and IRS published Revenue Procedure 2021-9 (Rev. Proc. 2021-9) on December 29, 2020. Rev. Proc. 2021-9 modifies the proposed safe harbor under Notice 2020-59 to make it more broadly applicable and less administratively burdensome. 

Additionally, the emergency coronavirus relief package signed into law on December 27, 2020 contains a taxpayer-favorable provision that modifies the recovery period applicable to residential rental property (including retirement care facilities) placed in service before January 1, 2018 for taxpayers making the RPTOB election.

Modifications to the RPTOB safe harbor under Rev. Proc. 2021

Under Rev. Proc. 2021-9, a residential living facility will be eligible to make the RPTOB election providing the facility:

  1. Consists of multiple rental dwelling units within one or more buildings or structures that generally serve as primary residences on a permanent or semi-permanent basis to individual customers or patients;
  2. Provides supplemental assistive, nursing, or other routine medical services; and
  3. Has an average period of customer or patient use of individual rental dwelling units of 30 days or more.

Alternatively, if the residential living facility qualifies as residential rental property under Section 168(e)(2)(A), it will be treated as an RPTOB for purposes of the revenue procedure. Thus in response to comments submitted to the Treasury Department and the IRS, Rev. Proc. 2021-9 modified the proposed safe harbor published in Notice 2020-59 in several important ways, including the following:

  • The definition of a qualified residential living facility has been modified to reduce the required average period of customer or patient use from 90 to 30 days. Further, the average period of use may be determined by reference to either the number of days paid for by Medicare or Medicaid, or the number of days under a formal contract or other written agreement.

This modification is a welcome change from the proposed safe harbor contained in Notice 2020-59. Medicare and Medicaid frequently cover patient stays of less than 90 days. Consequently, reducing the required number of days of use and allowing for determination with reference to days paid by Medicare or Medicaid should allow a greater number of facilities to qualify under the safe harbor.

  • Rev. Proc. 2021-9 provides an alternative test for purposes of determining whether a taxpayer meets certain requirements of the definition of a qualified residential living facility. Under this alternative test, if a taxpayer operates or manages residential living facilities that qualify as residential rental property for depreciation purposes, then the facility will be considered a qualified residential living facility for purposes of Section 163(j).

The administrative burden on taxpayers should be significantly reduced by allowing reliance on separate determinations made for depreciation purposes. Taxpayers will not be required to consider two distinct tests.

  • Rev. Proc. 2021-9 clarifies that the determination of whether a facility meets the definition of a qualified residential living facility must be determined on an annual basis. 

Under general rules, once a taxpayer makes the RPTOB election, the election remains in effect for subsequent years. Taxpayers relying on this safe harbor cannot depart from these rules as there is a continuing requirement to evaluate qualification on an annual basis. To the extent a taxpayer fails to meet the safe harbor requirements, it may become subject to the business interest deduction limitations under Section 163(j). Unless otherwise provided in future guidance, this would not appear to constitute an accounting method change.

Important Considerations to apply the safe harbor under Rev. Proc. 2021-9

Qualifying taxpayers may rely on the safe harbor contained in Rev. Proc. 2021-9 for tax years beginning after December 31, 2017. Further, if a taxpayer relies on the safe harbor, the taxpayer must use the ADS of Section 168(g) to depreciate the property described in Section 168(g)(8), as discussed above.

The changes under Rev. Proc. 2021-9 could open the door for taxpayers who qualify in a previous year (i.e., 2018 and 2019) as a result of the new rules to amend prior returns (for example, taxpayers that now qualify for the RPTOB election using the 30-day threshold average use instead of the 90-day average).

For purposes of applying the safe harbor, for any taxable year subsequent to the taxable year in which a taxpayer relies on the safe harbor to make the RPTOB election in which a taxpayer does not satisfy the safe harbor requirements, the taxpayer is deemed to have ceased to engage in the electing RPTOB (i.e., the taxpayer will likely be subject to the business interest expense limitations of Section 163(j)). However, for any subsequent taxable year in which a taxpayer satisfies the safe harbor requirements after a deemed cessation of the electing trade or business, the taxpayer’s initial election will be automatically reinstated.

To rely on this safe harbor, a taxpayer must retain books and records to substantiate that all of the above requirements are met each year. Taxpayers are not eligible to rely on the safe harbor in this revenue procedure if a principal purpose of an arrangement or transaction is to avoid Section 163(j) and its regulations in its entirety, and in a manner that is contrary to the purpose of Rev. Proc. 2021-9.

If you have specific questions about your facility or tax situation, please contact Jason Favreau or Matthew Litz. We’re here to help.

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Taxpayer-friendly changes for qualified residential living facilities

Read this if you are a business owner. 

Now that the Democrats have control of the Presidency, House of Representatives, and Senate, many in Washington, DC and around the country are asking “What is going to happen with business taxes?” 

While candidate Biden expressed interest in raising taxes on corporations and wealthy individuals, it is best to think of that as a framework for where the new administration intends to go, rather than a set-in-stone inevitability. We know his administration is likely to favor a paring back of some of the tax cuts made by the 2017 Tax Cuts and Jobs Act (TCJA). Biden has indicated his administration may consider changes to the corporate tax rate, capital gains rate, individual income tax rates, and the estate and gift tax exemption amount.

Procedurally, it is unclear how tax legislation would be formulated under the Biden administration. A tax package could be included as part of another COVID-19 relief bill. The TCJA could be modified, repealed, or replaced. It is also unclear how any package would proceed through Congress. Under current Senate rules, the legislative filibuster can limit the Senate’s ability to pass standalone tax legislation, thus leaving any such legislation to the budget reconciliation process, as was the case in 2017. It also remains unclear if the two parties will come together to work on any bill. Finally, it will be important to note who fills key Treasury tax positions in the Biden administration, as these individuals will have a strategic role in the development of administration priorities and the negotiation with Congress of any tax bill. Here are three ways tax changes could take shape:

  1. Part of a COVID-19 relief package
    With the Biden administration eager to provide immediate relief to individuals and small- and medium-sized businesses affected by the coronavirus pandemic, some tax changes could be included as part of an additional relief bill on which the administration is likely to seek bipartisan support. Such changes could take the form of tax cuts for some businesses and individuals, tax credits, expanded retirement contributions, and/or other measures. If attached to a COVID-19 relief bill, these changes would likely go into effect immediately and would provide rapid relief to businesses and individuals that have been particularly hard hit during the pandemic and economic downturn.
  2. Repeal and replace TCJA
    Another possibility is for Biden to pursue a full rollback of the TCJA and replace it with his own tax bill. This would be a challenge since the Democrats only have a slim majority in the Senate, meaning that Republicans could filibuster the bill unless Senate Democrats take steps to repeal the filibuster.

    Given that the Biden administration’s immediate priorities will be delivering financial assistance to individuals and businesses, ensuring the rollout of COVID-19 vaccines, and flattening the curve of cases, a repeal and replacement of the TCJA might not be voted on until at least late 2021 and likely would not go into effect until 2022 at the earliest.
  3. Pare back or modify the TCJA
    An overall theme of Biden’s campaign was not sweeping, radical change but making incremental shifts that he views as improvements. This theme may come into play in Biden’s approach to tax legislation. He may choose not to repeal the TCJA completely (prompting a return to 2016 taxation levels), but instead pare back some of the tax changes enacted in 2017. In practice, this could mean raising the corporate tax rate by a few percentage points, which could garner bipartisan support. Again, this likely would not be a legislative priority until after the country has passed through the worst of the COVID-19 pandemic.

Factors that will influence potential tax changes

Senate legislative filibuster

Currently, the minority party in the Senate can delay a vote on an issue if fewer than 60 senators support bringing a measure to a vote. Thus, Republicans would be likely to filibuster any bill that contains more ambitious tax rate increases. The uptick in the use of the filibuster in recent decades is perhaps a symptom of congressional deadlock, and there are calls from many Democrats to eliminate the filibuster in order to pass more ambitious legislation without bipartisan support (in fact, in recent years, the filibuster has been removed for appointments and confirmations). While President Biden and Senate Majority Leader Chuck Schumer may be open to ending or further limiting the filibuster, every Democratic senator would have to agree. West Virginia Senator Joe Manchin has said repeatedly that he will not vote to end the legislative filibuster.

If the filibuster remains in place as it appears it will, tax legislation would likely be passed as part of the budget reconciliation process, which only requires a simple majority to pass. However, the tradeoff is that any changes generally would have to expire at the end of the budget window, which typically is 10 years. This is how both the 2001 Economic Growth and Tax Relief Reconciliation Act and the TCJA were passed.

Appetite for bipartisanship

President Biden has signaled that he wants to work for all Americans and seek to heal the partisan divides in the country. He may be looking to reach across the aisle on certain legislation and seek bipartisan support, even if such support is not necessary to pass a bill. Biden stated during his campaign that he wants to increase the corporate tax rate—not to the 2017 rate of 35%—but to 28%. Achieving this middle ground rate might be viewed as a compromise approach.

As the new government takes office, it remains to be seen how much bipartisanship is desired, or even possible.

What this may mean for your business

It is important to note that sweeping tax changes probably are not an immediate priority for the incoming Biden administration. The new administration’s immediate focus likely will be on addressing the current fragmented approach to COVID-19 vaccinations, accelerating the distribution of the vaccines, taking steps to bring the spread of COVID-19 under control, and providing much needed economic relief. As noted above, there could be some tax changes and impacts resulting from future COVID-19 relief bills.

Those will be the bills to watch for any early tax changes, including cuts or credits, that businesses may be able to take advantage of. Larger scale tax changes, particularly any tax increases, may not go into effect until 2022 at the earliest. Here are some of the current rules and how Biden is proposing to deal with them.

If you have questions about your particular situation, please contact our team. We’re here to help. 

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Biden's tax plan: Tax reform details remain unclear

Read this if you are a New Hampshire resident, or a business owner or manager with telecommuting employees (due to the COVID-19 pandemic).

In late January, the Supreme Court asked the Biden Administration for its views on a not-so-friendly neighborly dispute between the State of New Hampshire and the Commonwealth of Massachusetts. New Hampshire is famous amongst its neighboring states for its lack of sales tax and personal income tax. Because of the tax rules and other alluring features, thousands of employees commute daily from New Hampshire to Massachusetts. Overnight, like so many of us, those commuters were working at home and not crossing state boundaries.

As a result of the pandemic and stay-at-home orders, Massachusetts issued temporary and early guidance, directing employers to maintain the status quo. Keep withholding on your employees in the same manner that you were, even though they may not be physically coming into the state. New Hampshire was against this directive from day one, but the nail in the coffin was an extension of the guidance in October. Within days, New Hampshire filed suit in the Supreme Court.

New Hampshire’s position

In its brief, New Hampshire asserts that the Massachusetts regulations are unconstitutional—in violation of the both the Commerce and Due Process Clauses of the U.S. Constitution. Each clause has historically prohibited a state from taxing outside its borders and limits tax on non-residents. For Massachusetts employers to continue withholding on New Hampshire resident’s wage earnings, New Hampshire argues, Massachusetts is imposing a tax within New Hampshire, contrary to the Constitution. 

What makes the New Hampshire situation unique is that it does not impose an income tax on individuals, a “defining feature of its sovereignty”, the state argues. New Hampshire would say that its tax regime creates a competitive advantage in attracting new business and residents. Maine residents, subject to the same Massachusetts rules, would receive a corresponding tax credit on their Maine tax return, making them close to whole between the two states. Because there is no New Hampshire individual income tax, their residents are out of pocket for a tax that they wouldn’t be subject to, but for these regulations. 

Massachusetts’ position

Massachusetts' intention behind the temporary regulations was to maintain pre-pandemic status quo to avoid uncertainty for employees and additional compliance burden on employers. This would ensure employers would not be responsible for determining when an employee was working, for example, at their Lake Winnipesaukee camp for a few weeks, or their relative’s home in Rhode Island. 

Additionally, states like New York and Connecticut have long had “convenience of the employer” laws on the books which imposed New York tax on telecommuting non-residents. Additionally, Massachusetts provided that a parallel treatment will be given to resident employees with income tax liabilities in other states who have adopted similar sourcing rules, i.e., a Massachusetts resident working for a Maine employer.

Other voices

The U.S. Supreme Court has requested a brief from the Biden administration with no deadline given. It’s assumed, however, to be received in time for the court to makes its decision before the end of term in June. Since the original filing, the States of New Jersey, Connecticut, Hawaii, Iowa, and others have filed briefs, imploring the Court to hear the case due to similar circumstances in their states and the wide ranging precedent Massachusetts and others may be effectuating. Additionally, Pennsylvania and others have released their own status quo guidance, following Massachusetts.

What now?

Right now, it’s wait and see what the Supreme Court decides. For Massachusetts employers specifically, you should review current withholdings and ensure compliance with the temporary regulations. The regulations for non-resident wages and withholding are in effect until 90 days after the state of emergency has lifted. Given that that date keeps moving further away, the rules may still be in effect when the Supreme Court delivers their decision in June. For all employers, it’s important that you review the rules in each state of operation and confirm that the proper withholding is made. 

Unwinding from the pandemic is going to be a long road, regardless of what decision the Supreme Court makes. If New Hampshire prevails, it’ll be a long compliance burden for both employers and employees to unwind the withholding and receive refunds. If Massachusetts wins, employers that weren’t following the regulations will have a costly tax exposure to correct.  

If you have questions about your specific situation, please contact us. We’re here to help.

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New Hampshire v. Massachusetts: Sovereignty or status quo?

Read this if you work in senior living. 

We are all pressed for time these days, especially in senior living and long-term care facilities, where the pandemic has taken a toll on the health of our residents, the well-being of our employees, and the state of our finances. Across the nation, losses from patient care have increased significantly from 2016-2020. In the Northeast, losses from patient care increased 17% from 2016-2019, and in the western United States, they increased by 52% from 2016-2019.

With so many time and financial pressures, why is the development of a labor management program an important investment of your time? Because labor management is important to the financial success of your facility.

Labor management factors to consider:

  • Labor is the largest expense in a facility—between 2016 and 2019 labor-related costs, including contract labor and employee benefits, represented between 48%-53% of the expenses reported on the Medicare cost report 
  • With a growing trend of hiring outsourced therapy, housekeeping, laundry, dietary, and other functions, actual labor related costs could be significantly higher
  • Increased COVID-19 expense may not be fully covered by reimbursement rates
  • Facilities are experiencing increased agency use to fill nursing vacancies, resulting in higher direct labor cost per patient day

The senior living industry is already facing severe nursing shortages and, according to the Bureau of Labor Statistics, at least 2.5 million more workers will be needed by 2030 to care for the so-called “silver tsunami”. Argentum has projected that 1.2 million new workers—mostly Certified Nursing Assistants, aides and Registered Nurses—will be needed in senior living through 2025.

Workforce shortages are not only occurring in nursing departments, but throughout all of our departments, as senior living competes with the retail and hospitality industry to fill ancillary positions.

The benefits of creating a labor management program

The development of a well-executed labor management program may result in:

Clarity on optimal staffing and competency levels in all departments
Labor budgets and schedules adjusted for both census and patient needs can help facilities have the right people in the right place at the right time. Time invested in this initiative improves patient outcomes, staff morale, and your organization’s bottom line. 

Stronger community integration and leadership
Most senior living facility positions are filled by recruiting locally. Understanding local demographic trends and developing a forward-looking strategy for staff acquisition, retention, and development (both personal and professional) may help a facility become an employer of choice and minimize vacancies. 

Achieving community recognition
A labor management program may help your facility better understand your CMS star rating as it relates to staffing, and tailor a response to publicly available ratings. 

Improved regulatory compliance and response to changes in tax and other policy
Many recent laws have varying provisions for organizations based on size, which is measured by number of employees or full-time employee equivalents. Well-structured labor reports may help your organization respond to regulatory changes promptly.

Opportunities for reimbursement optimization
By understanding your labor structure and compensation arrangements, you may be able to increase reimbursement though more accurate cost reporting (such as utilization review reimbursement on the Medicare cost report). Medicaid reimbursement methodologies vary by state. In many cases, correct classification of labor into reimbursable and non-reimbursable departments, as well as allocations between units, may be key. 

Improved bottom line
Understanding and managing labor statistics may help facilities improve their bottom line, both short and long term, by aligning costs and revenue trends.

Labor management is a key tool to drive efficiency and increase quality across all departments in your facility. Building a high-performing workforce culture and implementing labor management tools will help you gain efficiencies, reduce costs, and produce quality outcomes. The stakes are high right now—facilities that can build a strong culture and workforce will be the facilities that are successful in the future.

If you need assistance or have questions about your specific situation, please contact our senior living consulting team. We’re here to help. 

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Six steps for a successful labor management program 

Read this if you are a hospital or healthcare organization that has received Provider Relief Funds. 

The long-awaited Provider Relief Fund (PRF) Reporting Portal (the Portal) opened to providers on January 15, 2021. Unfortunately, the Portal is currently only open for the registration of providers. The home page for the Portal has information on what documentation is needed for registration as well as other frequently asked questions.

We recommend taking the time to review what is needed and register as soon as possible. Health Resources & Services Administration (HRSA) has suggested the registration process will take approximately 20 minutes and must be completed in one session. The good news is providers will not need to keep checking the Portal to see when additional data can be entered as the Portal home page states that registered providers will be notified when they should re-enter the portal to report on the use of PRF funds.

Access the portal

The Provider Relief Fund (PRF) Reporting Portal is only compatible with the most current stable version of Edge, Chrome and Mozilla Firefox.

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Provider Relief Fund (PRF) reporting portal