Health & Welfare Plans Newsletter

January 31, 2020

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[Official Guidance]

Text of HHS Proposed Notice of Benefit and Payment Parameters for 2021; New Notice Requirement for Non-Federal Governmental Plans

245 pages. "This proposed rule sets forth payment parameters and provisions related to the risk adjustment and risk adjustment data validation programs; cost-sharing parameters and cost-sharing reductions; and user fees for federally-facilitated Exchanges and State-based Exchanges on the Federal platform. It also proposes changes related to essential health benefits and would provide states with additional flexibility in the operation and establishment of Exchanges. It includes proposed changes related to cost-sharing for prescription drugs; excepted benefit health reimbursement arrangements offered by non-Federal governmental plan sponsors; the medical loss ratio program; Exchange eligibility and enrollment; exemptions from the requirement to maintain coverage; quality rating information display standards for Exchanges; and other related topics. It also proposes to repeal regulations relating to the Early Retiree Reinsurance Program....

"We also propose new notice requirements. To increase transparency in terminations of Exchange coverage or enrollment, we propose to require termination notices be provided in all scenarios where Exchange coverage or enrollment is terminated. We also propose to require excepted benefit health reimbursement arrangements (HRAs) sponsored by non-Federal governmental plan entities to provide a notice to participants that contains specified information about the benefits available under the excepted benefit HRA."

U.S. Department of Health and Human Services [HHS]

[Official Guidance]

HHS Releases Proposed Notice of Benefit and Payment Parameters for 2021

"This proposed rule would update regulatory and financial standards applied to issuers and Exchanges, as well as set parameters for the risk adjustment program. Similar to Payment Notices issued in prior years, the Proposed 2021 Payment Notice contains a number of other provisions that support the Trump Administration’s ongoing commitment to lowering premiums, protecting taxpayer dollars and strengthening the health insurance markets to deliver more competition and choice for consumers."

Also available:

Centers for Medicare & Medicaid Services [CMS], U.S. Department of Health and Human Services [HHS]

[Official Guidance]

Text of EBSA Advisory Opinion 2020-01A: Health Benefit Program Offered by Limited Partnership to Their Limited Partners (PDF)

"Based on your representations, in the Department’s view, the limited partners as described in your request are not employees or bona fide partners of the limited partnerships; they do not work for or through the partnership; and they do not receive income for performing services for or as partners of the partnership. In sum, you have provided no facts that would support a conclusion that the limited partners are meaningfully employed by the partnership or perform any services on its behalf.... [In] the Department’s view the limited partners are not participants in a single-employer group health plan or in an ERISA plan at all."

Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

[Guidance Overview]

Health Plan Sponsors Must Update Vendor Agreements for Substance Use Disorder Confidentiality Regs

"[M]any plan sponsors may not be aware of a contract requirement with respect to the confidentiality of patient records relating to a substance use disorder (SUD). If applicable, these contract provisions must be in place by February 2, 2020.... In a number of respects, these rules strengthen protections already in place under the HIPAA privacy and security rules."

Jackson Lewis P.C.

[Guidance Overview]

New Jersey to Require Employers to Provide Severance Pay

"[T]he amended state law [requires] employers to provide employees who lose their jobs in a covered transfer or termination of operations or a mass layoff one week of severance pay for each full year of employment ... It also adds a severance penalty for an employer's failure to provide at least 90 days' notice of impending layoffs. In such circumstances, the employee will be entitled to an additional four weeks of severance pay[.]"

Buck

Sunshine in the Black Box of Pharmacy Benefits Management (PDF)

203 pages. "[Managed Care Organizations (MCOs] and PBMs appear to be using their control in managed care to incrementally shift dollars to their affiliated companies.... [The authors] believe that [they] have provided irrefutable evidence in this report that whatever strategy is in place is far from equitable for different drugs, MCOs, and pharmacies.... [A]ny pricing/payment strategy that is not equitable on all three dimensions risks having providers prioritize certain patients with certain disease states over others based on the arbitrary profitability an MCO (or its PBM) applies to the treatment."

3 Axis Advisors LLC, for Florida Pharmacy Association [FPA] and American Pharmacy Cooperative Inc. [APCI]

Help Employees Minimize Out-of-Pocket Health Costs

"Provide an overview of the health care services that are available at no cost or a lower cost than an office visit.... Offer tips to manage prescription drug cost ... Promote use of transparency tools ... Some HSA vendors will advance reimbursement for medical bills based on amount committed from paycheck for the year. Some EOB aggregators will pay the amount due to the provider and assist the employee with a payment plan interest free."

Mercer

State Paid Leave Requirements: What Employers Should Do in 2020 (Besides Comply)

"Most employers will need to make some changes to their leave policies to incorporate state requirements. How can those changes optimize the way that employer and state policies work together? ... [A]ny single employee event could trigger a myriad of leave entitlements. How many different places does an employee need to go to file for all these benefits?"

Mercer

District Court Strikes Down HHS Fee Rules on Delivering HIPAA PHI

"[T]he court observed that the 2013 regulations were more expansive than the HITECH Act, which did not address a right to transmit PHI in any format other than an EHR.... HHS's 2016 guidance was a game-changer that caused the medical records provider to lose millions of dollars in profits each year. This is because for-profit entities increasingly discovered that they could structure requests as third-party directives (for which HHS's $6.50 flat fee method began to become the industry standard), thereby avoiding typically higher state-authorized fees." [Ciox Health, LLC v. Azar, No 18-040 (D.D.C. Jan. 23, 2020)]

Thomson Reuters Practical Law

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2020 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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