Health & Welfare Plans Newsletter

May 8, 2019

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Retirement Plan Administrator for DC Plans
Ingham Retirement Group
in Miami FL / Telecommute

Mid-Level Pension Administrator
Robin S. Weingast & Associates, Inc.
in Garden City NY

Actuary
Employee Benefits Security Administration, U.S. Department of Labor
in Washington DC / Telecommute

Auditor - Recent Graduate
Employee Benefits Security Administration, U.S. Department of Labor
in Fort Wright KY / Telecommute

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Employee Benefits Security Administration, U.S. Department of Labor
in Fort Wright KY / Telecommute

Benefits Advisor
Employee Benefits Security Administration, U.S. Department of Labor
in Chicago IL / Telecommute

Investigative Assistant
Employee Benefits Security Administration, U.S. Department of Labor
in Chicago IL

Senior Policy Advisor
Centers for Medicare & Medicaid Services, U.S. Department of Health and Human Services
in Washington DC

Health Insurance Specialist (Technical Advisor)
Centers for Medicare & Medicaid Services, U.S. Department of Health and Human Services
in Woodlawn MD / Telecommute

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[Official Guidance]

Text of CMS Final Regs Requiring Drug Pricing Transparency for Medicare and Medicaid Programs

102 pages. "This final rule [amends] regulations for the Medicare Parts A, B, C and D programs, as well as the Medicaid program, to require direct-to-consumer (DTC) television advertisements of prescription drugs and biological products for which payment is available through or under Medicare or Medicaid to include the Wholesale Acquisition Cost (WAC or list price) of that drug or biological product. This rule is intended to improve the efficient administration of the Medicare and Medicaid programs by ensuring that beneficiaries are provided with relevant information about the costs of prescription drugs and biological products so they can make informed decisions that minimize their out-of-pocket (OOP) costs and expenditures borne by Medicare and Medicaid, both of which are significant problems." [Editor's note: Includes over 80 pages of summary, analysis and response to the 147 comments received on the proposed regs. Also available: CMS Drug Pricing Transparency Fact Sheet.]
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

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[Official Guidance]

Text of HHS Draft 2020 Unified Rate Review Instructions (PDF)

48 pages; rev. May 2019. "The [Unified Rate Review Template (URRT) (.XLSM file)] has undergone significant changes from prior years; the instructions and the information requested in the Actuarial Memorandum have changed significantly. The URRT Version 5.0 has been updated to more closely follow the build-up from the Index Rate to the Plan Adjusted Index Rate. The URRT Version 5.0 also collects calibration factor information and geographic area rating factors. We believe these changes will facilitate the rate review process, as well as reduce burden on issuers completing the template."
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Official Guidance]

Text of CMS FAQs for Federally-facilitated Marketplace User Fee Adjustment Submission Requirements (PDF)

"[CMS] is releasing a web-based form through which Third-Party Administrators (TPAs), including Pharmacy Benefit Managers (PBMs) that provide services to a self-insured group health plan offered by an eligible organization, and Federally-facilitated Exchange (FFE) issuers that have entered into an agreement with these TPAs (including PBMs) can report contraceptive claims costs incurred by plan participants and beneficiaries.... [These FAQs] are intended to assist issuers and TPAs (including PBMs) with navigating the submission requirements and understanding the mechanism through which CMS will apply the FFE user fee adjustment to FFE issuers.... CMS anticipates the data submission window for the FFE User Fee Adjustment, including submission of the Notice of Intent Disclosure Form by TPAs (including PBMs), will be May 13th to June 14th.... CMS will collect data through a web-based form which will be available on the Center for Consumer Information and Insurance Oversight (CCIIO) website and will be described on the Registration for Technical Assistance Portal (REGTAP)." [Unnumbered document, May 8, 2019]
Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

HHS FAQs Make Clear that Most Healthcare, Fitness Tracker, and Wellness Apps Are Not Covered by HIPAA

"[M]ost people assume that HIPAA protects health information from disclosure or at least provides some higher level of security over health information. However, HIPAA is narrower than most people believe... HHS's FAQs [are] specific to transactions between a patient, a healthcare provider, and the healthcare provider recommending a course of treatment that includes transmitting healthcare information to an app.... The key takeaway here is that app users bear the bulk of responsibility when they choose to input their personal health or other information into apps."
Dickinson Wright PLLC

[Guidance Overview]

Dallas Passes Paid Sick Leave Ordinance Despite Potential Legislative and Judicial Antidotes

"The Dallas Ordinance, which closely resembles the Austin and San Antonio paid sick leave ordinances, is scheduled to go into effect on August 1, 2019 for employers with more than five employees at any time in the preceding 12 months and on August 1, 2021 for all other employers. Whether the Dallas, San Antonio, and Austin ordinances will ever go into effect is currently unclear as multiple pieces of legislation that would preempt all three ordinances make their way through the Texas state legislature."
Seyfarth Shaw LLP

[Guidance Overview]

Updated New Jersey Family Leave Insurance Notice to Employees Released

"The notice must be conspicuously posted in the employer's workplace in a place that is accessible to all employees.... [T]he employer is required to provide each employee a written copy of the notification no later than 30 days after it was issued by the [New Jersey Department of Labor and Workforce Development], at the time of hire, whenever the employee notifies the employer of the need for FLI benefits, and upon an employee's first request for benefits."
Seyfarth Shaw LLP

District Court Invalidates Labor Department's 2018 Final Association Health Plan Rule (PDF)

"[O]ne need not stray at all from the decision' s text to discern a powerful and ringing endorsement of the prior law ERISA rules governing bona fide associations ... The opinion enunciates clearly what those standards are (purpose, commonality of interest, and control), holds them up as exemplars, and finds the new rules wanting by comparison.... This has important ramifications for those state regulators who, in the wake of the issuance of the Final Rule, issued guidance categorically rejecting any large group AHPs." [State of New York v. U.S. Dept. of Labor, No. 18-1747 (D.D.C. Mar. 28, 2019; notice of appeal filed by DOL on Apr. 26, 2019)]
Mintz, via Bloomberg Tax Management Compensation Planning Journal

District Court Tells HHS to Revisit 340B Drug Discounts After Ruling Cuts 'Unlawful'

"CMS changed the program's payment rate from up to 6% more than the average price of drugs to 22.5% less than the average price, which cut $1.6 billion in 340B payments.... Judge Rudolph Contreras ... [reaffirmed] that cuts made under the 2018 Outpatient Prospective Payment System (OPPS) were unlawful and extended the ruling to include the 2019 cuts. However, he did not grant the relief requested by the hospital groups, which included the difference between the amount they received under the 2018 and 2019 OPPS rules and the amount they are entitled." [American Hospital Assoc. v. Azar, No. 18-2084 (D.D.C. May 6, 2019)]
FierceHealthcare

Three Major PBMs Show Lower Drug Trend Across Commercial Clients

"CVS Health Corp.'s 2018 drug trend report shows a 3.3% trend for its commercial clients last year, driven by utilization increases and adherence improvements. Overall, the company cited savings of more than $141 billion on pharmacy spend from 2016 to 2018. Earlier this year, PBM giant Express Scripts, now a part of Cigna Corp., reported a record low drug trend of 0.4% across its commercial clients ... CVS Health reported a -1.7% trend for antidiabetic drugs, despite increasing utilization and 5.6% average wholesale price inflation for brand drugs."
AISHealth

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House Committee Approves Drug Price Transparency Legislation/Drug Sample Reporting Requirement Under Sunshine Act

"The STAR Act provides that if the price of a drug increases by more than 10% or $10,000 over one year, or 25% or $25,000 over three years, or if the manufacturer launches a new drug at or above $26,000, the manufacturer must submit a "justification" to HHS with cost information beginning in 2021. HR 2113 also requires manufacturers to provide a summary of the justification, exclusive of proprietary information, for posting to the HHS website. Significantly, the STAR Act authorizes civil monetary penalties to be imposed for failing to submit a timely justification ($10,000 per day) and/or providing false information in the justification (not to exceed $100,000 per false item)."
Morgan Lewis

Editor's Pick The Money and Politics of Prescription Drugs: What You Need to Know

"America spends about $460 billion a year on these drugs, roughly as much as the combined revenues of the top three car makers.... Tracking the money challenges the savviest of analysts. Between the drugmakers and the patients lie an array of middlemen, who end up masking the true prices through discounts to one another and rebates to patients. Here are a few benchmarks to help you navigate the realm of prescription drugs."
Kaiser Health News

Individual Insurance Market Performance in 2018

"In this brief, [the authors] ... look at the average premiums, claims, medical loss ratios, gross margins, and enrollee utilization from 2011 through 2018 in the individual insurance market, as well as the amount of medical loss ratio rebates insurers expect to issue to 2018 enrollees.... [I]nsurers are expecting to pay a record total of about $800 million in rebates to individual market consumers for not meeting the ACA medical loss ratio threshold[.]"
Henry J. Kaiser Family Foundation

Employers Take Action to Improve Access to Quality, Affordable Health Care

"An increasing number of employers intend to provide their workforce with better access to high-quality and cost-effective health care by embracing a myriad of solutions such as high-performance networks, centers of excellence, onsite or near-site health centers, and accountable care organizations. Nearly one-half (45%) of employers say they intend to adopt these types of solutions by 2021, compared to just 32% that have already done so.... [E]mployers' top concerns around delivering high-quality, comprehensive health care to their workforce ...[include] inadequate access to mental health services (54%) and substance abuse treatment (47%)."
Willis Towers Watson

[Opinion]

Is it Time for Unlimited Time Off?

"Once the perk of tech firms and startups, more companies are beginning to explore unlimited paid time off. And, though still rare at only one to two percent of companies, it's a popular request in part because workforce demographics continue to shift. Nearly half of employees are Millennials, whose priorities are changing the benefits conversation."
United Benefit Advisors

Benefits in General

[Guidance Overview]

'Tax Cuts' Act Raises the Tax on Funds Generating UBTI (PDF)

"The tax code now requires that the trust or VEBA calculate gains and losses of each 'trade or business.' In the absence of regulations or additional guidance from the Treasury Department or the IRS providing otherwise, the IRC now appears to require that a trust or VEBA treat each investment fund as a separate trade or business. Therefore, the ability to calculate gains and losses on a net basis is lost. Further, the trust or VEBA may not use future NOLs generated by one fund to offset gains generated by another fund."
Groom Law Group, via planadviser

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2019 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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