Health & Welfare Plans Newsletter

June 19, 2020

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View COVID-19 News and Resources

[Guidance Overview]

EEOC Will Advance New Wellness Regs

"In a public meeting on June 11, 2020, the [EEOC] voted ... to advance a new notice of proposed rulemaking on wellness programs. The EEOC intends to move forward with the proposed rule after parts of its last regulation were invalidated in court and even as the value of wellness programs has been refuted in several recent studies. This post summarizes the status of regulations for wellness programs, the comments made during the public meeting, and what to expect next."

Katie Keith, in Health Affairs

[Guidance Overview]

New York Updates Definition of Telehealth to Include 'Audio-Only' Communications

"With this law, the definition of 'telehealth' under New York's Public Health Law will include four general modalities by which telehealth providers can deliver appropriate 'health care services' ... [1] telemedicine; [2] store and forward technology; [3] remote patient monitoring; and [4] audio-only telephone communications."

Bond, Schoeneck & King

[Guidance Overview]

Seattle Enacts Gig Worker Paid Sick and Safe Time Ordinance During COVID-19 Crisis

"The Seattle City Council has enacted the Paid Sick and Safe Time for Gig Workers Ordinance, which temporarily [mandates] paid sick and safe time (PSST) to 'gig workers' for online-based food delivery network companies and drivers of transportation network companies with 250 or more gig workers worldwide. The ordinance takes effect July 13, 2020, and ends 180 days after either [1] the termination of the Mayor's civil emergency, or [2] the termination of any concurrent civil emergency applicable to Seattle that is proclaimed by a public official in response to COVID-19, whichever is later. However, the law's other legal requirements, such as recordkeeping, will stay in effect for three years."

Jackson Lewis P.C.

DC Circuit Court: CMS Rule on Drug Pricing Disclosure Exceeds Statutory Authority

"The US Court of Appeals for the District of Columbia Circuit rejected an attempt by the Trump administration to require drug manufacturers to disclose their wholesale acquisition costs for drugs that are advertised on television, finding the disclosure regulation 'largely untethered' to the Medicare and Medicaid statutory schemes from which the [CMS] ... drew its rulemaking authority." [Merck & Co. v. HHS, No. 19-5222 (D.C. Cir. Jun. 16, 2020)]

Morgan Lewis

Tenth Circuit Affirms Self-Insured Health Plan's Denial of Surrogacy Expenses

"Although the court did not address the issue, the Pregnancy Discrimination Act (PDA) may prohibit enforcement of a health plan's exclusion for the pregnancy and birth-related medical expenses of a participant acting as a surrogate mother. Since the PDA mandates that a plan cover pregnancy in the same manner as other medical conditions, it could be difficult for a plan to maintain that excluding pregnancy expenses based on the circumstances of conception would be permitted under the PDA." [Moon v. Tall Tree Administrators, LLC, No. 18-4034 (10th Cir. May 19, 2020)]

Thomson Reuters / EBIA

Minnesota Supreme Court Rejects Challenges to Minneapolis Sick and Safe Ordinance

"The Minnesota Supreme Court has upheld the Minneapolis Sick and Safe Time Ordinance, ruling state law does not preempt the Ordinance, and it can apply to employers who are located outside of the City.... Effective July 1, 2017, the Ordinance required employers to provide a certain minimum level of paid sick leave to all employees who work at least 80 hours a year in the City." [Minnesota Chamber of Commerce v. City of Minneapolis, No. A18-0771 (Minn. Jun. 10, 2020)]

Jackson Lewis P.C.

Employers' Role in the Return of Employees to Elective Healthcare

"It's understandable that employees would be hesitant to return to care, even as epidemiological curves flatten and healthcare facilities open their doors for maintenance care and elective procedures. That's where employers can play an important role, by taking steps to support employees as they consider returning for care. And they can take the opportunity to build on one of the positives coming out of this experience -- greater acceptance of virtual care, among both patients and providers."

Mercer

Florida Bill to Ban Insurers' Use of Genetic Info Goes to Gov. DeSantis

"State and federal law already prevent health insurance companies from considering a person's genetic information when deciding if and at what price to cover that consumer. The Florida legislation would extend that ban to life, disability and long-term care insurers.... If DeSantis signs the bill, Florida would become the latest of several states, including California, Vermont, and Maine, to restrict the use of genetic information by life insurers."

InsuranceNewsNet.com

[Opinion]

Supreme Court's LGBTQ Decision Spurs Legislation, Lawsuits

"The ruling has prompted a number of organizations and members of Congress to renew their campaign for passage of the Equality Act (HR 5) ... The Supreme Court's ruling is also set to inflame the legal fight over a final [ACA] Section 1557 regulation issued by the Trump Administration [June 12] that rolls back prior agency rules protecting transgender individuals against discrimination by health plans and medical providers."

Mercer

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