Category: Uncategorized

Last year New York State made significant changes to its wage orders resulting in increases to the State’s minimum wage, white collar overtime exemption salary thresholds, tip, meal and lodging credits, and uniform allowances.  The latest changes go into effect on December 31, 2017.  We quickly summarize the minimum wage and overtime salary threshold changes below, but urge you to visit our prior post here for more in-depth coverage, including best practices for compliance.

• New York City (11 or More Employees):
  • The minimum wage increases to $13.00 per hour from $11.00 per hour.
  • The overtime salary threshold for the executive and administrative exemptions increase to $975.00 per week ($50,700 annually) from $825.00 per week ($42,900 annually).
• New York City (10 or Fewer Employees):
  • The minimum wage increases to $12.00 per hour from $10.50 per hour.
  • The overtime salary threshold for the executive and administrative exemptions increase to $900.00 per week ($46,800 annually) from $787.50 per week ($40,950 annually.
• Downstate – Nassau, Suffolk & Westchester Counties:
  • The minimum wage increases to $11.00 per hour from $10.00 per hour.
  • The overtime salary threshold for the executive and administrative exemptions increase to $825.00 per week ($42,900 annually) from $750.00 per week ($39,000 annually).
• Remainder of New York State:
  • The minimum wage increases to $10.40 per hour from $9.70 per hour.
  • The overtime salary threshold for the executive and administrative exemptions increase to $780.00 per week ($40,560 annually) from $727.50 per week ($37,830 annually).
• Fast Food Workers:
  • New York City: The minimum wage increases to $13.50 per hour from $12.00 per hour.
  • Reminder of New York State: The minimum wage increases to $11.75 per hour from $10.75 per hour.

On December 22, 2017, President Trump signed the Tax Cuts and Jobs Act (the “Act”). While the Act will impact many types of taxpayers, some of the more significant changes are relevant to private funds, investment advisers, mutual funds, and others in the investment management industry. We have highlighted various of those provisions below. In addition, other provisions of the Act will impact investors, such as revisions to the rules for Section[1] 529 plans (to allow $10,000 per year per beneficiary to be used for pre-college education) and to the rules for Individual Retirement Accounts, which may affect investor demand and behavior.

For calendar year taxpayers, most, but not all, of the provisions of the Act become effective for taxable years beginning on or after January 1, 2018. Many, but not all, of the provisions of the Act sunset after December 31, 2025.

Three-Year Holding Period for Capital Gains Treatment for Carried Interests.

Effective for taxable years beginning after this December 31, the Act imposes a three-year holding period requirement in order for capital gains realized with respect to a profits interest in an investment partnership (e.g., carried interests) to be taxed as long-term capital gain. Under the law in effect for 2017 and prior taxable years, the holding period was one year. If the three-year holding requirement is not met, any gain on the sale of such an interest will be treated as short-term capital gain and taxed at ordinary income rates. The three-year holding period also applies to the carried interest holder’s share of net capital gains realized with respect to investment assets held by the partnership. This provision, however, does not apply to (1) interests held, directly or indirectly, by a corporation or (2) capital interests that provide a right to share in partnership capital commensurate with the amount of capital contributed or with the amounts included in income as compensation under Section 83.

These new rules only apply to an “applicable partnership interest,” which is generally a partnership interest received by a taxpayer in connection with the taxpayer’s performance of substantial services in the trade or business of raising or returning capital and either investing in, or disposing of, securities, commodities, real estate held for investment, cash or cash equivalents, options or derivatives, and similar interests or developing such assets. Accordingly, this provision applies to carried interests and similar profits interests issued in connection with the asset management business. It appears that interests in partnerships issued before the effective date of the Act may be subject to these rules. It is anticipated that regulations or other guidance will be issued clarifying the scope of these new rules as a number of uncertainties remain (e.g., the application of the rules in connection with tiered partnerships). Given the prevalence of the issuance of carried interests to managers of hedge funds, private equity funds, and similar asset managers, these new rules may implicate structural changes to traditional fund structures going forward.

Corporate Income Tax Rate – Top Rate Reduced from 35% to 21%.

Effective for taxable years after December 31, 2017, the Act eliminates the current graduated corporate income tax rate structure and imposes a flat 21% tax rate. Under the law in effect for prior taxable years, the highest corporate income tax rate was 35%. Unlike many other provisions of the Act, there is no sunset date on this provision.

Reduction of Highest Individual Income Tax Rate.

Effective for taxable years beginning after December 31, 2017, and before January 1, 2026, there will be seven tax brackets applicable to individuals’ taxable income: 10%, 12%, 22%, 24%, 32%, 35%, and 37%. Under the law in effect for prior years, the tax rates have been10%, 15%, 25%, 28%, 33%, 35% and 39.6%. The reduction of the highest individual income tax rate from 39.6% to 37% will impact various disclosures of investment companies registered under the Investment Company Act of 1940, as amended (e.g., mutual funds and exchange-traded funds), where calculations of after-tax returns are based on the maximum individual income tax rates and certain other disclosures (e.g., backup withholding, which is based on the fourth lowest marginal rate for individual taxpayers, which has been reduced from 28% to 24%). Following the sunset of this provision after 2025, the pre-Act tax brackets and rates will apply.

Miscellaneous Itemized Deductions for Individuals, Trusts, and Estates are Eliminated.

Effective for taxable years beginning after December 31, 2017, and before January 1, 2026, miscellaneous itemized deductions (e.g., investment management fees) for individuals, trusts, and estates are eliminated. Under the law in effect for prior years, individuals have been permitted to deduct certain miscellaneous itemized deductions to the extent that such deductions exceed 2% of adjusted gross income.

Pass-Through Income Deduction of 20%.

Effective for taxable years beginning after December 31, 2017, and before January 1, 2026, the Act provides a new deduction for certain pass-through income of noncorporate taxpayers. Specifically, the Act allows a partnership, S corporation, or sole proprietorship a deduction for “qualified business income” (“QBI”), which is the net amount of items of income, gain, deduction, and loss with respect to the trade or business of the taxpayer. In general, the deduction is 20% of the taxpayer’s QBI. Notably, the Act provides that the 20% deduction may be taken against qualified real estate investment trust (“REIT”) dividends and qualified publicly traded partnership income. The deduction is not applicable, however, to capital gain dividends or qualified dividend income. It is unclear how a registered fund’s investment in these entities will be treated under the Act. Moreover, the deduction is only available to specified service trade or business income, including from the performance of services that consist of investing and investment management, trading, or dealing in securities, partnership interests, or commodities, to the extent that the income of the individual engaged in such business does not exceed certain levels ($315,000 for joint filers and $157,500 for single filers). While there will be no shortage of planning opportunities for taxpayers seeking to maximize the likelihood of benefitting from this deduction, in light of the Act’s significant ambiguities and uncertain application to a variety of industries and situations, however, the precise contours of the deduction remain to be seen and likely will require interpretive guidance from the Internal Revenue Service (the “IRS”). Please refer to our client alert on this provision which can be found at the following link: U.S. Tax Reform: A Golden Ticket for Partnerships and S Corporations?

Limitation of Deduction for Business Interest.

The deduction for business interest for any taxable year beginning after December 31, 2017, will be limited to the sum of (1) business interest income for such year, (2) 30% of “adjusted taxable income” for such year (which cannot be less than zero), plus (3) floor plan financing interest for such year.

“Adjusted taxable income” means a taxpayer’s taxable income, computed without regard to (1) any item of income, gain, deduction, or loss that is not properly allocable to a trade or business; (2) any business interest or business interest income; (3) the amount of any net operating loss (“NOL”) deduction under Section 172; (4) the amount of any deduction under Section 199A; and (5) in the case of taxable years beginning before January 1, 2022, any deduction allowable for depreciation, amortization, or depletion. In addition, the IRS may provide for other adjustments in computing adjusted taxable income. Business interest that is not deductible because of this limitation may generally be carried forward indefinitely except with respect to partnerships, which are subject to certain additional special rules.

Net Operating Loss (“NOL”) Limitations.

The NOL deduction is now limited to 80% of taxable income, calculated without regard to the NOL deduction. In addition, the two-year carryback of NOLs has been repealed, and taxpayers are no longer permitted to carryback NOLs, with a limited exception for farming businesses. However, taxpayers are no longer restricted to a 20-year carry over period, and may now carry over NOLs indefinitely. These rules are effective for losses and NOLs arising in taxable years beginning after December 31, 2017.

Reduction in Dividends Received Deduction.

As discussed above, the highest corporate income tax rate has been reduced from 35% to 21%. Prior to the Act, corporations were generally entitled to a 70% deduction for dividends received from other corporations or an 80% deduction for dividends received from a corporation in which the corporate parent owned 20% or more of the stock. Under what is thought to be a corresponding revision to partially offset the corporate income tax rate reduction, the dividends-received deductions have been reduced from 80% and 70% to 65% and 50%, respectively. In the case of dividends received from a corporation that is a member of the same consolidated group, a recipient corporation is still permitted a 100% deduction. The reduction in the deduction is effective for taxable years beginning after December 31, 2017.

Timing of Inclusion of Income for Accrual Basis Taxpayers.

For accrual basis taxpayers, unless an exception applies, an amount is included in income when all events have occurred that fix the right to receive that income and the amount of that income can be determined with reasonable accuracy. This is known as the “all events test.” Generally, under the Act, the all events test will not be met with respect to an item of income any later than when that item is taken into account as revenue in (1) an applicable financial statement of the taxpayer or (2) under rules specified by the IRS, another financial statement. In addition to other types of income, this rule will also apply to income from original issue discount (“OID”) and market discount on loans and mortgage-backed securities. This rule does not apply to a taxpayer that does not have a financial statement as described above for a taxable year, and it does not apply to income from mortgage servicing contracts (including, presumably, income from excess servicing). These changes are effective for taxable years beginning after December 31, 2018, for income from a debt instrument having OID, and for taxable years beginning after December 31, 2017, for other types of income.

Gain from Sale of Partnership Interest.

The IRS has previously taken the position that gain or loss realized by non-U.S. persons from the disposition of an interest in a partnership that conducts a trade or business through a permanent establishment or fixed place of business in the United States should be treated as gain or loss effectively connected with a U.S. trade or business or attributable to a permanent establishment. However, in the 2017 Tax Court case Grecian Magnesite Mining, Industrial & Shipping Co., SA v. Commissioner, the Tax Court rejected this position. The Act, in turn, effectively codifies the reversal of Grecian Magnesite Mining. If a non-U.S. person disposes of an interest in a partnership engaged in a trade or business in the United States through a permanent establishment or fixed place of business, gain or loss on the disposition of such partnership interest is treated as effectively connected with the conduct of the trade or business if certain rules and conditions are met. Such income is generally subject to withholding requirements similar to withholding under the FIRPTA regime. This provision applies to sales, exchanges, and dispositions of a partnership interest on or after November 27, 2017. The withholding requirements apply to sales, exchanges, and dispositions of a partnership interest after December 31, 2017.

International Tax Provisions.

In addition to the above changes, the Act contains numerous international tax provisions. A new provision adds a deduction for the foreign-source portion of dividends received by a domestic corporation from a 10%-owned foreign corporation. A new “participation exemption” provision adds rules for treating deferred foreign income as “Subpart F income.” Changes are made to the existing Subpart F rules and the definition of a “United States shareholder” for purposes of those rules. Provisions are added to prevent base erosion, to modify the rules for foreign tax credits, and to modify the insurance business exception to the passive foreign investment company rules. These rules, especially in the context of various investments of different investment vehicles, are complex.

* * *

As noted above, in light of the Act’s significant ambiguities and uncertain application to a variety of industries and situations, the precise impact of the Act remains to be seen and likely will require interpretive guidance from the IRS. Congress may also consider corrections legislation to address issues that arise as implementation moves forward.

The wave of workplace harassment allegations dominating headlines in recent weeks has been a wake-up call to employers to review their anti-harassment policies. However, the best-drafted policies are meaningless unless companies have an investigation protocol in place that mandates a prompt and thorough investigation of any complaints of sexual misconduct in the workplace. While a thorough investigation can help to alleviate office tension and may shield the company in the event of a lawsuit, an inadequate investigation can hurt worker morale and expose the employer to litigation.

Below are some tips for conducting effective workplace investigations:

1. PROMPTLY REPORT THE COMPLAINT TO HR

Supervisors (or other employees) should not take it upon themselves to investigate complaints of workplace harassment. Rather, they should immediately contact HR, or those individuals charged with enforcing the company’s anti-harassment policy, to report such complaints. Supervisors should report the complaint even if made anonymously, if the supervisor does not think the complained of conduct amounts to harassment, or if the supervisor believes the complainant will report it to HR on his/her own. Complaints of harassment should be reported even if the complainant asks that it not be reported.

2. IDENTIFY THE BEST PERSON TO CONDUCT THE INVESTIGATION

Companies should carefully consider who will be responsible for conducting the investigation. Employers should evaluate whether the person charged with conducting the investigation can remain impartial, objective, and fair throughout the investigation. Companies should also consider whether the investigation should be conducted by internal resources, or if they should engage a third party to investigate. The answer likely depends on the severity of the complaint, the identity of the accused, the adequacy of internal resources, and the risk of legal liability. In some cases, the company can protect documentation related to the investigation as attorney “work product” if inside or outside counsel is involved in the investigation.

3. PROMPTLY INITIATE (AND CONCLUDE) THE INVESTIGATION

The investigator should immediately initiate the investigation and share the timeline for the investigation with the complainant and the accused. If there are unavoidable delays, the reason for the delay should be documented and, where appropriate, should be communicated to the complainant and the accused.

4. TAKE IMMEDIATE AND NECESSARY REMEDIAL MEASURES

At the start of the investigation, the investigator should consider whether any temporary measures need to be taken. For example, if appropriate, the complainant may be reassigned or the accused may be placed on leave. When taking such measures, however, employers should avoid taking any actions that may appear to be retaliatory. Thus, it may be inappropriate to reassign the complainant, rather than the accused supervisor, or place the complainant on leave, even if paid. See also Tip # 7 below.

5. INTERVIEW ALL POTENTIAL WITNESSES

Investigators should interview every witness connected with the alleged misconduct, typically beginning with the complainant, even if the complainant provided a written statement. The investigator should ask each witness to identify any other individuals who may have witnessed the alleged incident and if there is anyone else with whom the investigator should speak. All identified witnesses should be interviewed, including former employees when possible. To the extent feasible, ask each witness not to discuss the substance of the interview with other potential witnesses.

6. DOCUMENT THE INVESTIGATION

The investigator should document the entire investigation process – not only the who, what, where, when and how of the investigation, but also any remedial or corrective actions that were taken and the reasons for such actions. This step is critical because the employer may be required to demonstrate when and how it investigated the employee’s complaint. Even though some documentation may be protected from disclosure in a legal proceeding, the best practice is for the investigator to presume the documentation will be reviewed during an EEOC or other agency investigation or trial. Thus, the investigator should avoid documenting speculations, particularly those that suggest the company may be liable.

7. TAKE STEPS TO AVOID RETALIATION

Do not retaliate against the complainant and take steps to avoid any appearances of retaliation. Investigators should inform all individuals involved in the investigation that the company will not tolerate any form of unlawful harassment or retaliation against the complainant or anyone participating in the investigation and document that the warning was given. The investigator should also encourage the complainant to report any suspected retaliatory behavior and should designate someone to follow up with the complainant periodically in the months following the investigation to ensure compliance.

8. TAKE PROMPT, REMEDIAL ACTION

After all interviews have been conducted (and any credibility issues have been resolved), the employer should promptly determine whether any discrimination, harassment, and/or retaliation has occurred. If the complained of conduct occurred, the employer should take reasonable and appropriate disciplinary action against the accused, including termination if warranted. It is important that any action taken against the accused be done only after a thorough investigation is completed.

9. KEEP THE CONCERNED PARTIES INFORMED

After a determination has been made, the employer should meet separately with the complainant and the accused to explain the investigation process, the results and any disciplinary action that may be taken. If the results of the investigation are inconclusive, this should be also be communicated. The complainant should also be encouraged to report any further instances of harassment or retaliation. Likewise, the investigator should remind the accused of the company’s EEO and anti-harassment policies and that he/she must not retaliate against the complainant or anyone who cooperated in the investigation.

10. BE CONSISTENT

All complaints, even those that may seem trivial, should be thoroughly investigated. Employers should treat all employees accused of similar wrongful conduct in the same fashion, regardless of the status of the parties involved. One of the most common mistakes a company can make is to protect a high-level executive, top producer or favored employee who has been accused of harassment, while taking severe disciplinary action against other employees accused of similar misconduct.

An employer’s prompt and effective response to complaints of harassment or retaliation may limit its liability should the employee take subsequent legal action. Thus, it is imperative that employers implement not only robust EEO and anti-harassment policies, but also effective mechanisms to investigate and resolve workplace complaints consistent with those policies.

As is the tradition here, towards the end of the year we take stock of what transpired in our respective industries and highlight important legal, regulatory, and business developments.  For those of us who monitor the Food and Drug Administration (FDA or the Agency) and counsel FDA-regulated entities, it has certainly been a whirlwind of a year.

2017 began with no clear picture of who would be assuming leadership of the Agency, but also with a brand-new piece of critically important (and bipartisan!) legislation – the 21^st Century Cures Act – which imposed new obligations and authorities on FDA that needed to be implemented, operationalized, and fully funded.  In early May, Dr. Scott Gottlieb was sworn in as the 23^rd Commissioner of FDA and he moved quickly to shift policy priorities in almost every area that the Agency regulates, a goal that in some ways was made more efficient due to the concurrent timing of modernization mandates imposed by the Cures Act.  This year’s must-pass User Fee Act, the FDA Reauthorization Act or “FDARA”  engendered some hand-wringing and political drama over the summer, but was ultimately passed by Congress in August and signed into law.  FDARA includes some important policy and programmatic changes for new prescription drugs/biologics, generic drugs, and biosimilars, but it did not contain major wholesale reforms to the Agency’s authorities due to the very recent passage of the Cures Act.

This is the first in a series of three installments that will review the actions FDA took in 2017, reflect on what they may mean for regulated industry, and provide a few predictions for 2018.  This first installment, which will be broken up into two posts, focuses on therapeutic products; that is, drugs, biologics, human cells and tissue products, and gene therapies.  Our subsequent posts will focus on medical devices and diagnostics, including whole-genome sequencing tests, and digital health and other software-related developments, respectively.

FDA’s Drug Competition Action Plan = More Generics and Biosimilars to Market

It will come as no surprise to our regular readers – or to anyone who reads anything for that matter – that high drug prices are a bipartisan “thing” right now and it is all hands on deck to fix the problem.  From even before Day 1, given his prior scholarship on this issue, Commissioner Gottlieb was expected to shake things up at FDA and to use existing legal authorities more actively and creatively to foster greater competition; reduce unnecessary regulatory barriers to market; and generally help get generic and biosimilar markets working better for consumers – i.e., by lowering overall drug costs.  Since we’re only six months into implementation of Dr. Gottlieb’s multi-pronged, self-named Drug Competition Action Plan, it remains to be seen whether he achieves that bottom-line impact on the markets.  But without a doubt, Agency leadership has been taking bold and decisive actions towards that goal, several of which we blogged about earlier in the year (see here and here).  Many new guidance documents have been issued for Abbreviated New Drug Application (ANDA) applicants, including a Draft Guidance on Formal Meetings Between FDA and ANDA Sponsors of Complex Products (think EpiPen) intended to expedite the development of such complex products.  These efforts are very much welcomed by the generic drug industry, who negotiated significant changes to the Generic Drug User Fee Act as part of its first reauthorization cycle with FDARA.

FDA also hosted its own public meeting in July to discuss whether its administration of the Hatch-Waxman Amendments, which created today’s marketing pathway for generic drugs, is striking the right balance between innovation and access to lower-cost alternative treatments.^[1] Then in November, Commissioner Gottlieb participated in a Federal Trade Commission workshop on the issue of competition on prescription drug markets.  And as promised back in June when it published the first iteration of this list, FDA released on December 15^th an update to its new “List of Off-Patent, Off-Exclusivity Drugs without an Approved Generic.”  (We haven’t compared this list to June list to see what happened to the numbers, but are definitely interested to see that analysis!)

Intriguingly, speaking at a conference in Washington, D.C. on December 5^th, Dr. Gottlieb hinted at a significant policy announcement being planned for the beginning of 2018 on the topic of increasing competition in markets for biological products.  FDA has continued to make progress in its implementation of the Biologics Price Competition and Innovation Act (BPCIA), which created the formal marketing pathway for biosimilar products, having approved 4 biosimilar applications this year (including the first biosimilar treatment for cancer, see here).  The Agency also got the Biosimilar User Fee Act reauthorized as part of FDARA; issued a new draft guidance on Statistical Similarity to Evaluate Analytical Similarity; and has recently updated its online BPCIA public resources and provider training materials in a pretty nice way.  But since the Obama Administration issued the long-awaited draft guidance on demonstrating Interchangeability with a Reference Product back in mid-January, it seems fair to say that this year most of the BPCIA action came out of the Supreme Court and other federal courts.  So we will be watching for Dr. Gottlieb’s promised policy announcement on biologics and biosimilars in early 2018.

Breakthrough Therapy and Other Expedited Development/Approval Pathways on the Rise

Another exciting trend in the therapeutics space this year was the pace and revolutionary nature of newly approved, first-in-class drug and biological therapies.  As of November 30, 2017, the Agency had approved 40 new molecular entities (NMEs) this calendar year and 17 of those were for orphan (rare disease) indications.  This number is very high for NME approvals and – given that December is not included in the total – 2017 could be a historic year for this important FDA metric.  The existing record for single-year NME approvals is from 1996 (53 total), which may have been somewhat of an outlier year; 2015 holds the second-place record with 45 such approvals and, after a lackluster 2016, it would be exciting if this year comes in above or on par with 2015.

In addition, 17 of those 40 NMEs had been designated and developed as Breakthrough Therapies – the highest annual approval count to date since the Breakthrough program was created by Congress as part of the 2012 user fee-reauthorization cycle.  28 of the NMEs had been reviewed under Priority Review, and 18 were designated for the Fast-Track Program, which also represents a record annual number for fast-track.  It’s also worth noting that the majority of these innovative products took advantage of more than one expedited program, with over 2/3 of this year’s drug and biologic (NDA and BLA) approvals using more than one.

Besides the sheer number of new drug and first-in-class approvals, several incredible medical advances were approved by FDA and commercially launched this year.  These include the first two approved CAR-T therapies, in which a patient’s own immune cells are re-engineered using gene therapy tools to target the patient’s individual cancer, one for children and one for adults (see here and here).  CAR-T represents a transformative treatment for cancer patients, and the two newly approved products also represent some of the first personalized cell therapies to get to market.  Another ground-breaking approval from 2017 was the first cancer treatment to target a specific biomarker rather than a particular organ where tumors originated, meaning it can be used to treat patients with many different forms of cancer as long as the underlying DNA defect causing the cancer meets the appropriate profile.  Much of the success of these revolutionary treatments within the U.S. regulatory process, especially how quickly they were reviewed by FDA, can likely be attributed to the new Oncology Center of Excellence (OCE).  OCE has proven so successful in its first year of operation that Commissioner Gottlieb has recently been reported to be mulling the possibility of extending the model to other areas, like neurological disease.

Other disease states also benefited from positive developments in 2017, such as the cystic fibrosis community, which saw the first new CF drug approved by FDA in almost 20 years.

The second part of our drug-specific installment will discuss the Regenerative Medicine Advanced Therapies (RMAT) designation, as well as additional observations regarding enforcement efforts in the drugs and biologics space.

_{Footnotes
[1] For readers interested in viewing the public comments to this request for comments, you can go to the electronic docket here and also the meeting page linked above for public presentations during the July 18, 2017 meeting.  We expect ongoing policy and procedural changes by the Agency in 2018 as it continues to review public submissions to this meeting notice, which were not due until mid-November following a comment period extension.}

As it did last year, the IRS has extended the deadline for furnishing Forms 1095-B and 1095-C to individuals by 30 days. This reprieve will allow employers, health insurers, and other plan sponsors to distribute the forms on or before March 2, 2018, rather than January 31, 2018.

The IRS also extends the good-faith transition relief for this Affordable Care Act (ACA) reporting to the reports prepared for the 2017 year. This extension offers relief for incomplete and incorrect information supplied in Forms 1094 and 1095, where the reporting entity can show that it made good faith efforts to comply with the requirements. This relief does not apply where good faith is not exercised or where a reporting deadline is missed.

The new guidance does not extend the deadlines for submitting the forms, along with Forms 1094-C and 1094-B, to the IRS. Those deadlines remain February 28, 2018, for paper forms and April 2, 2018, for electronic filings. Those submitting paper forms should take note that the IRS filing deadline precedes the date for providing the forms to individuals.

Employers should also be prepared to respond to inquiries about coverage from employees who are filing their tax returns for 2017 early and may wish to keep in mind that the legislative repeal of the individual mandate under the ACA does not take effect until 2019.