My Comments: An area of expertise that I claim, involves a topic known as “captive insurance companies.” This concept applies to successful small business owners and the companies they own. These folks are in the news a lot lately because they get talked about in the context of the Affordable Care Act and what some pundits say will ruin them.

But since 99% of small businesses have less than 50 employees, which means the PPACA is not in play, there is a more important reason to pay attention, and that’s the government shutdown and the effect a potential default will have on them going forward.

For those of you who are small business owners and don’t know about captives, you can find out much more elsewhere on this web site. (or click on the attached image…) For now, know that it represents a way for you to improve cash flow, minimize risk exposure, and set aside funds for the future with favorable tax consequences.

Sitanta O’ Mahony October 10, 2013

By the time you read this, the fiscal crisis afflicting the US may appear to be over. Indeed despite the markets being roiled by talk of a possible US default, reaching the debt ceiling – as the government is forecast to do on October 17th – does not mean the government will default.

In fact the American constitution prevents such an eventuality; the 14th Amendment states that “the validity of the public debt of the United States, authorized by law” is sacrosanct and “shall not be questioned.” Despite this, perhaps because of remarks by the US press secretary appearing to dismiss the 14th amendment as a solution, the markets continue to be spooked.

Captive insurers are also being affected by the legislative deadlock, and unfortunately this will continue whether or not the impasse is resolved.

Lawrence Prudhomme, vice president at management and consultancy firm GPW and Associates, Inc. says the shutdown of the Internal Revenue Service (IRS), which is closed for business until the impasse is resolved, is one of the most immediate and visible ways the government shutdown is affecting captives.

It is also a short-term issue, he says. “For captive insurance companies domiciled outside the United States, obtaining an employer identification number requires direct contact with the IRS and cannot be done electronically.

So, as a result, until the IRS is reopened, nothing can be done in this area. It’s inconvenient, but not critical to the overall process of forming a new captive. We are anticipating that things will be resolved shortly and any backlogs will be overcome in a reasonable amount of time” says Prudhomme.

The biggest fiscal cliff development which Gary Osborne, President of USA Risk Group, Inc., the largest independent captive management firm in the US, has seen is an increase in firms utilising their captive, or starting a captive, to fulfil obligations under The Patient Protection and Affordable Care Act (PPACA), aka Obamacare.

“We’re seeing a big increase in smaller companies looking at utilising captives to self-insure. Self-insurance can be used to meet the requirements of PPACA and it gives companies much greater flexibility and choice in terms of the coverage they provide compared to remaining in one of the health insurance exchanges”.

Osborne cites the case of Vermont which mandates the provision of unlimited fertility treatments in its exchanges. However if a firm self-insures, a cap of one or two such treatments can be implemented.

“The coverage provided under a self insured plan can be tweaked as long as it meets the minimum federal standard which is generally much lower than many states are imposing under the health insurance exchanges.”

Although states can’t stop firms self-insuring under the federal law, in a bid to maximise higher standards of health care for all employees, they are limiting the ability to buy stop loss insurance and Osborne says this is forcing companies with fewer than 100 employees back onto the exchanges.

The other area in which the impasse is impacting captives is in relation to the renewal of the Terrorism Risk Insurance Program Reauthorization Act (TRIPRA), commonly known as TRIA, which is set to expire on December 31, 2014.

“TRIA is one of the areas the government are considering cutting, people are beginning to question why the government is getting involved and whether or not it’s really needed”, says Osborne. With trenchant cuts in public spending on the table TRIA seems an easy target.

Yet notwithstanding the tag of ‘corporate welfare’ being lobbed at it by the Cato Institute and others, in fact TRIA doesn’t cost a lot of money, says Osborne. “It’s a pooling mechanism, an advance from the government, which insurance companies (including domestic captives) contribute to by paying up to 3% of their premium. Unfortunately it’s one of those symbolic issues that has been caught up in the fight.”

Despite this, Osborne thinks TRIA’s future is assured. “There are enough vested interests fighting for it”. Let’s hope the same can be said for affordable healthcare.