Viewing posts from: November 2015

Pre-Thanksgiving ACA Regulation Dump – 2017 Proposed Benefit Payment Metrics

Posted November 25, 2015 by PHaynes

PPACAHHS (the Department of Health and Human Services) issued proposed regulations that address a wide range of PPACA (Patient Protection and Affordable Care Act) benefit provisions the will be effective for the 2017 plan year (generally, the first plan year beginning on or after January 1, 2017). While these rules will not be finalized until the Spring of 2016, plan sponsors may begin to prepare for them now.

CMS (the Centers for Medicare & Medicaid Services) also took the opportunity to take advantage of our busy holiday schedules by providing us with the draft 2017 Actuarial Value Calculator as well as their User Guide and Methodology guidance. Those links are featured below.

Here are the highlights:

A.  2017 Out-of-Pocket MaximumsThe proposed 2017 annual out-of-pocket maximums are $7,150 for individual coverage and $14,300 for family coverage.

B.  2017 Marketplace Enrollment PeriodThe 2017 enrollment period will follow the same timing as 2016 enrollment: November 1, 2016 through January 31, 2017.

C.  2017 User FeeThe fee insurers pay to sell individual policies through the Marketplace will remain at 3.5% of the monthly premium.

D.  Network Adequacy StandardsThe rules propose several changes related to network adequacy requirements for plans sold on the Marketplace.

  • Treating certain out-of-network expenses as in-network – Insurers offering plans in any Marketplace would have to provide individuals at least 10 days’ notice prior to a procedure at an in-network facility if the individual might receive out-of-network services, for example from an out-of-network anesthesiologist. If the notice is not provided, the individual would be allowed to count the out-of-network cost sharing against his or her in-network out-of-pocket maximum.
  • Standards for network coverage – The rules would establish provider network adequacy standards for health plans in the federal Marketplace. These standards would cover factors such as consumer travel time and distance to providers. HHS is also considering creating standards for identifying network strength to improve transparency for consumers.
  • Coverage when a provider leaves the network – The rules would impose new continuity-of-care requirements in the federal Marketplace. Insurers would have to provide 30 days’ notice before discontinuing a network provider. If an individual is receiving active treatment, the insurer would have to cover continuing care for up to 90 days or until treatment is completed.

E. Standardized Plan Options in the Individual Marketplace – To make it easier for consumers to compare costs for similar plans offered by different insurers in the federal Marketplace, certain plans will be designated as standardized plans. The current proposal includes four silver, one bronze and one gold plan. Insurers can choose to offer standardized plans, non-standardized plans or both. The standardized plans would have:

  • Standard deductible amounts
  • Four-tier drug formularies
  • Only one in-network provider tier
  • Some services, such as office visits, urgent care and generic drugs, not subject to the deductible
  • A preference for copayments over coinsurance

F.  New Model for State/Federal Partnerships – State Marketplaces that use’s technology for eligibility and enrollment will be known as state-based exchanges on the federal platform (SBE-FPs). States will retain primary responsibility for plan management and consumer assistance while using the federal enrollment system, including certain call center services. This model is intended to make the transition easier should additional states decide to move to in the future.

G.  Navigator Responsibilities – The proposed regulations modify the requirements that apply to navigators. Navigators would be required to provide post-enrollment assistance for functions such as Marketplace eligibility appeals, application for exemptions through the Marketplace, and transitioning from coverage to care.

H.  Marketplace Enrollment Directly on Insurer’s Websites – The proposed rules request comments on standards that would allow insurers and web-brokers to directly enroll individuals in the Marketplace while remaining on their own website.

I.  Changes to Federally-Facilitated SHOP Plans – HHS proposes a new employee choice option on the SHOP Marketplace for small employers. Employers can currently offer their employees a single plan or the choice of plans within a metal level. Under the new “vertical choice” model, employers would be able to offer employees a choice of all plans across all available levels of coverage from a single insurer.


5.66 Years Later – We Have Final Regs for PPACA’s 2010 Features – Departments Finalize Healthcare Reform Guidance

Posted November 25, 2015 by PHaynes

PPACA ComplianceThe Departments of Labor, Treasury and Health and Human Services (DOL, IRS, HHS) have jointly issued final regulations coverage a number of health care reform topic, many dating back to 2010’s initial implementation of the Affordable Care Act (PPACA). These include:

  • Appeals and Review of Claims
  • Dependent Coverage
  • Designating a Primary Care Physician
  • Emergency Care
  • Grandfathered Plans
  • Implications for Expatriate Plans
  • Lifetime and Annual Limits
  • Preexisting Condition Exclusions
  • Rescissions (Cancellation of Coverage)

Dates! Dates! Dates—I need to know the dates before I can go on.

  • Effective date: These final regulations are effective on January 19, 2016.
  • Applicability date: These final regulations apply to group health plans and health insurance issuers beginning on the first day of the first plan year (or, in the individual market, the first day of the first policy year) beginning on or after January 1, 2017.

So, that means you have some time to digest these and then makes plans to implement the changes.

Appeals and Review of Claims. The good news here – is that these were “finalized” without “substantial change.” They are much like the initial guidance, which you can review using the hyperlinks below.

Under this new, long-list of clarifying technical guidance, we see the Departments’ full and fair review rules. When a health plan relies on new or additional evidence (or even a new reason or rationale) when making a benefit determination, the plan must automatically provide the evidence or rationale to the plan-participant-claimant and give them a reasonable opportunity to respond.

The final regulations also extend the transitional period for using state “NAIC-similar” external review processes through 2017.   Plans and insurers in a state without a NAIC compliant external review process, and self-insured plans, must follow an HHS process established previously. In addition, the temporary rule applying the external review process to claims that involve medical judgment and rescissions has now been made permanent, and two new items are added to the list of what is considered a medical judgment.

Prior articles:

Dependent Coverage.  Natural, adopted and stephchildren (sometimes referred to as dependent children, even though they may not be “tax” dependents, can be married, don’t have to live with you, etc.) may enjoy coverage until age 26. Some plans end that coverage on the child’s birthday, others end the coverage on the last day of the month in which the birthday occurs, and still others terminate coverage as of the end of the calendar or plan year in which the birthday occurs.  One thing that is new, today, is that the final regulations clarify that you cannot require the “children” to live within a specific service area in order to be eligible for coverage. This regulation relates only to eligibility and does not require a plan such as an HMO to cover services provided outside the plan’s service area.

Also, the examples in the guidance illustrate the requirement that coverage (for children) cannot vary based on age, except for children that are over the age of 26 (if that is applicable).  One example cites that a plan may not charge more for a dependent child unless that child was age 26 or older.  (Confirming what most plans did, and consistent with some of the post-2010 guidance and FAQs, where plans were attempting to “upcharge” for dependents over age 18, over age 23, etc.).  In another example, a plan with a narrow-network PPO would be required to permit entry (eligibility) for my daughter attending an out-of-state college, but the plan would not be required to cover out-of-network care that she receives—except for emergencies.

Designating a Primary Care Physician – Patient Protections. New clarifications allow health plans to require participants and beneficiaries to select in-network providers within specified geographic limits when designating a primary care provider. They also clarify when and how balance billing (i.e., billing patients for the excess of the providers’ billed charges over benefits paid by the plan and other patient payments, such as copayments or coinsurance) is permitted for out-of-network emergency care, and provide that emergency care does not have to be sought within a specific timeframe (e.g., within 24 hours of onset).

Emergency Care.   Health plans cannot charge a plan participant more for emergency care, even if it is out-of-network. The final regulations permit balance billing for emergency care, although existing state laws prohibiting balance billing must still be followed. Plans and insurers must provide notice in the Summary Plan Description (SPD) about whether balance billing may result from using an out-of-network provider for emergency care.

Grandfathered Plans. The final regulations maintain the rule that grandfathered status is determined separately as to each “benefit package” under a group health plan. They also adopt existing “anti-abuse rules” that curtail attempts to retain grandfather status through indirect plan changes, and add new clarifying examples. Considerable effort is also devoted to describing changes that would cause a plan to lose grandfathered status— addressing, for instance, decreases in employer contribution rates and changes in copayments for limited categories of services. Highlighting the continuing relevance of these issues, the agencies estimate that more than 40 million participants and beneficiaries are covered by grandfathered group health plans.

Prior articles:

Lifetime and Annual Limits. Group health plans (including self-insured plans) that are not required to cover EHB are nonetheless barred from imposing annual or lifetime dollar limits on any EHB they do offer. Under the regulations, these plans may define EHB by reference to any of the 51-benchmark plans identified by the states, or the District of Columbia, or one of the three largest Federal Employees Health Benefit Program (FEHBP) plans.

Finalizing some, but not all, existing guidance for HRAs and other account-based plans that are permitted only if “integrated” with a group health plan that complies with health care reform requirements (including the prohibition on lifetime and annual dollar limits), the regulations attempt further clarifications and offer new guidance. For instance, they explain that employers with fewer than 20 employees may be unable to meet the integration test for Medicare Part B and Part D premium reimbursement arrangements (PRAs) provided in previous guidance because some insurers will not allow offers of coverage to employees who are eligible for Medicare (see our article). The final regulations allow such PRAs to be integrated with Medicare if employees not offered other group health plan coverage would be eligible for that coverage but for their eligibility for Medicare. They also clarify that a forfeiture of amounts or waiver of reimbursements under an HRA will comply with the integration requirements even if amounts may be reinstated on a future date, upon death, or the earlier of the two dates.

Preexisting Condition Exclusions. While adopting previous guidance on preexisting condition exclusions, the final regulations also clarify that these rules do not prohibit plans or insurers from excluding all benefits for a condition if they do so regardless of when the condition arose relative to the effective date of coverage. They note, nevertheless, that other rules and laws (such as the essential health benefit (EHB) requirements) may preclude such exclusions.

Rescissions. Although they don’t break new ground, the final regulations remind employers that a rescission (i.e., retroactive cancellation or discontinuation of coverage) is considered an adverse benefit determination subject to internal and external appeals procedures and that coverage must remain effective until an internal appeal is completed. They also finalize previous guidance providing that the prohibition on rescissions is not violated if a plan retroactively terminates coverage due to a failure to pay required contributions (including COBRA premiums).





Proposed Rules May Allow More Wellness Data

Posted November 5, 2015 by PHaynes


The EEOC (U.S. Equal Employment Opportunity Commission) just released its latest proposed strategy for allowing wellness plan managers access to covered spouses’ medical data while still complying with the Genetic Information Nondiscrimination Act of 2008 (GINA).

Currently, regulations say that a wellness program cannot require* employees to provide their genetic information as a condition of receiving incentives, including current or past health status of a spouse or other family member. In its proposal, the EEOC addresses certain exceptions to GINA’s data gathering restrictions and provides limited incentives in exchange for spousal health data.

Key proposed amendments:

  • Employers may request, require, or purchase genetic information when the wellness plan is designed to reasonably promote health or prevent disease.
  • Incentives may be offered to an employee whose spouse (1) is covered under the employee’s health plan; (2) receives health or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current or past health status as part of a health reimbursement arrangement.
  • Incentives will include financial and in-kind inducements, such as time-off awards, prizes or other forms of reward or penalties.
  • The total incentive for an employee and spouse to participate in a wellness program that collects information about current or past health status may not exceed 30% of the total cost of the plan in which the employee and any dependents are enrolled.
  • The maximum portion of an incentive that may be offered to an employee alone may not exceed 30% of the total cost of self-only coverage.

Health Risk Assessment

Health Risk Assessments (also known as the other-HRA) are basic medical questionnaires that can be stand-alone attempts to gather information (e.g., high blood pressure, high cholesterol, or other significant risk factors) or can be combined with a medical exam.

The EEOC notes in their overview to the proposed rule, “[t] here is minimal, if any, chance of eliciting information about an employee’s own genetic make-up or predisposition for disease from the information about current or past health status of the employee’s spouse.”  However, the EEOC suggests a different approach around obtaining health information on children dependents. They comment, “[b]y contrast, there is a significantly higher likelihood of eliciting information about an employee’s own genetic make-up or predisposition for disease from information about the current or past health status of the employee’s children, which is why the proposed revision does not permit inducements for such information.”

Reagan Crawford commented, “these HRAs are valid attempts by employers and plan sponsors to screen for diabetes, heart conditions, hypertension and other conditions that can and should be screened for during regular preventive visits—but not every employee and spouse knows this. This process brings those gaps to light and allows for appropriate and effective action to be taken.”

EEOC will accept comments on the proposed amendments for 60 and then will vote on a final rule.

*GINA allows for disclosure when related to an employee’s voluntary participation in the employer’s wellness program.



Combined FMLA Leave for Same Employer Spouses

Posted November 4, 2015 by Megan DiMartino

Under 29 CFR 201(b), married couples who are employed by the same employer can be required to share a combined 12 weeks of FMLA leave to:

  • bond with their new child; or
  • care for their own parent with a serious health condition.

Father taking newborn son's temperature with thermometerThe regulation states:

“Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement.”

This provision does not seem fair to married couples as none of the above applies to unmarried couples. The Department of Labor (DOL) did not intend for this, but rather intended to encourage employers to hire married couples, thereby reducing the burden on those employers if their married employees decided to have children.

Hmmm, that’s a head scratcher…

Source: FMLA Insights – Guidance & Solutions for Employers | The FMLA Marriage Penalty: When Spouses Work for the Same Employer

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Benefits of Hiring People with Disabilities

Posted November 2, 2015 by Megan DiMartino

321220It’s not just the law, there are business benefits to hiring those with disabilities.

Benefit #1 – Those with disabilities can have longer tenure than those who do not have a disability.

Benefit #2 – An employer who is disability-confident knows how to communicate better with customers with disabilities, as well as attract customers with disabilities.

Benefit #3 – Reputation and brand. 92% of the American public favorably view businesses that hire those with disabilities.

Benefit #4 – Hiring disabled individuals increases employee engagement by strengthening workplace morale through a committed and diverse work environment.

In 2010, the American census data reported that 19% of the population had a disability. Those who indicated that their disability was severe accounted for more than half of that 19%. Of those with disabilities ages 21-63, 41% were employed while 79% of people without a disability are employed.

Recent data shows little change in this pattern within the past few years. Accounting for all age groups, employment-population ratio was lower for those disabled and the unemployment rates were higher for those with a disability.

Source: tribehr – Workplace Tribes | Employment and Disability

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

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