Centers for Medicare & Medicaid Services, HHS § 411.108

employment periods; for example, The exemption does not apply to serv- based on an hours bank arrangement. ices performed for employers outside of (Active union members often have the order. hours bank coverage.) (3) Members of the clergy. A member of (c) Coverage by virtue of current em- the clergy is considered to have cur- ployment status. An individual has cov- rent employment status with a church erage by virtue of current employment or other religious organization if the status with an employer if— individual is receiving cash remunera- (1) the individual has GHP or LGHP tion from the church or other religious coverage based on employment, includ- organization for services rendered. ing coverage based on a certain number (f) Special rule: Delayed compensation of hours worked for that employer or a subject to FICA taxes. An individual who certain level of commissions earned is not working is not considered an em- from work for that employer at any ployee solely on the basis of receiving time; and delayed compensation payments for (2) the individual has current em- previous periods of work even if those ployment status with that employer, payments are subject to FICA taxes (or as defined in paragraph (a) of this sec- would be subject to FICA taxes if the tion. employer were not exempt from paying (d) Special rule: Self-employed person. those taxes). For example, an indi- A self-employed individual is consid- vidual who is not working in 1993 and ered to have GHP or LGHP coverage by receives payments subject to FICA virtue of current employment status taxes for work performed in 1992 is not during a particular tax year only if, considered to be an employee in 1993 during the preceding tax year, the indi- solely on the basis of receiving those vidual’s net earnings, from work in payments. that year related to the employer that offers the group health coverage, are at § 411.106 Aggregation rules. least equal to the amount specified in The following rules apply in deter- section 211(b)(2) of the Act, which de- mining the number and size of employ- fines ‘‘self-employment income’’ for so- ers, as required by the MSP provisions cial security purposes. for the aged and disabled: (e) Special Rule: members of religious (a) All employers that are treated as orders and members of clergy. (1) Members a single employer under subsection (a) of religious orders who have not taken a or (b) of section 52 of the Internal Rev- vow of poverty. A member of a religious enue Code (IRC) of 1986 (26 U.S.C. 52 (a) order who has not taken a vow of pov- and (b)) are treated as a single em- erty is considered to have current em- ployer. ployment status with the religious (b) All employees of the members of order if— an affiliated service group (as defined (i) The religious order pays FICA in section 414(m) of the IRC (26 U.S.C. taxes on behalf of that member; or 414m)) are treated as employed by a (ii) The individual is receiving cash single employer. remuneration from the religious order. (c) Leased employees (as defined in (2) Members of religious orders who section 414(n)(2) of the IRC (26 U.S.C. have taken a vow of poverty. A member 414(n)(2)) are treated as employees of of a religious order whose members are the person for whom they perform serv- required to take a vow of poverty is ices to the same extent as they are not considered to be employed by the treated under section 414(n) of the IRC. order if the services he or she performs (d) In applying the IRC provisions as a member of the order are consid- identified in this section, CMS relies ered employment only because the upon regulations and decisions of the order elects social security coverage Secretary of the Treasury respecting under section 3121(r) of the IRC. This those provisions. exemption applies retroactively to services performed as a member of the § 411.108 Taking into account entitle- order, beginning with the effective ment to Medicare. dates of the MSP provisions for the (a) Examples of actions that constitute aged and the disabled, respectively. ‘‘taking into account’’. Actions by GHPs

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