Health & Welfare Plans Newsletter

September 14, 2020

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[Official Guidance]

Text of CMS Enrollment Manual for Federally-Facilitated Exchanges and Federally-Facilitated Small Business Health Options Program (PDF)

177 pages. "This manual is effective as of September 2, 2020. All enrollments made on or after September 2, 2020, should be processed in accordance with the operational requirements set forth in this document." Icon to read more

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

[Official Guidance]

Text of Presidential Executive Order: Lowering Drug Prices by Putting America First

"To the extent consistent with law, the Secretary of [HHS] shall immediately take appropriate steps to implement his rulemaking plan to test a payment model pursuant to which Medicare would pay, for certain high-cost prescription drugs and biological products covered by Medicare Part B, no more than the most-favored-nation price. The model would test whether, for patients who require pharmaceutical treatment, paying no more than the most-favored-nation price would mitigate poor clinical outcomes and increased expenditures associated with high drug costs." Icon to read more

The White House

[Guidance Overview]

Exceptional Usefulness and Quality iconDOL Revises FFCRA Regs to Clarify Paid Leave Rules in Wake of New York Federal Court's Decision

"[T]he DOL held firm that an employer must have work available for an employee in order for the employee to be eligible for FFCRA leave.... The DOL underscored, however, that employers may not arbitrarily withhold work in order to thwart an employee's ability to take leave and emphasized that the unavailability of work must be due to legitimate, nondiscriminatory, non-retaliatory business reasons ... [T]he DOL crafted a definition [of healthcare provider] that focuses on employees whose duties or capabilities are directly related to the provision of health care services or are so integrated to provision of such services so as to adversely impact patient care if not provided.... Intermittent leave still requires employer consent -- but 'intermittent' may be defined differently than employers previously thought ... [The DOL clarified] that any documentation required ... need not be provided before leave begins, but rather may be given 'as soon as practicable, which in most cases will be when the employee provides notice' of the need for FFCRA leave. " Icon to read more

Littler

[Guidance Overview]

DOL Revises COVID-19 Leave Regs, Broadening Coverage for Healthcare Workers and Clarifying Other Employer Obligations

"[1] Health care provider definition narrowed ... [2] Work-availability requirement reaffirmed ... [3] Intermittent leave still requires employer consent ... [4] Employee documentation timing clarified ... [5] Notice requirement revised to address inconsistency ... It is most critical for employers in the healthcare industry to adapt to these changes. No longer can you exclude a wide swath of workers from FFCRA coverage, and instead must narrowly tailor any exclusion you implement to only cover a smaller set of employees more closely associated with the performance of health care work." Icon to read more

Fisher Phillips

[Guidance Overview]

DOL Redefines Health Care Provider Exception to FFCRA

"The revised Rule recognizes that individuals who fall under this health care provider exemption may work, among other places, at a doctor's office, hospital, health care center, clinic, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar permanent or temporary institution, facility, location, or site where medical services are provided. But the DOL explained that an employee does not need to work at one of these facilities to be a health care provider, and working at one of these facilities does not necessarily mean an employee is a health care provider." Icon to read more

Jackson Lewis P.C.

[Guidance Overview]

Exceptional Usefulness and Quality iconKey Decision Points in ACA Reporting Vendor Setup Questionnaires, Part 2: The Affordability Safe Harbor

"[T]he IRS provides three safe harbors for ALEs to determine whether an offer of coverage is affordable for purposes of avoiding B Penalty liability ... [T]he ALE may choose different safe harbors for any reasonable category of employees.... Employers should always use the federal poverty line affordability safe harbor where available because it [1] results in coverage automatically being deemed affordable with no calculations necessary, and [2] permits employers to take advantage of streamlined ACA reporting via the Qualifying Offer Method." Icon to read more

ABD Insurance & Financial Services

[Guidance Overview]

Upcoming Deadline iconCalifornia Extends COVID-19 Paid Leave Requirements to Large Employers

"The new law applies to all private-sector employers in California, including businesses that employ 500 or more employees [which] were exempt from the paid leave requirements of the federal [FFCRA] ... [E]mployers operating in California that were large enough to escape federal paid leave requirements should act immediately to comply with California's new supplemental paid leave rules.... These supplemental leave requirements are set to become effective no later than Sept. 19, 2020." Icon to read more

Armstrong Teasdale

[Guidance Overview]

Impact of the COBRA Extension Interim Final Rule

"Under the temporary rule, once the administration declares the national emergency over, COBRA beneficiaries can keep their COBRA options open for 120 days -- 60 days after the national emergency is declared over, with another 60 days allowed as part of the existing COBRA rule. During the outbreak period, there are no deadlines for beneficiaries to elect COBRA." Icon to read more

International Foundation of Employee Benefit Plans [IFEBP]

ERISA Does Not Bar Medical Providers from Enforcing Health Plans' Payment Promises Under State Law

"Medical providers treating patients covered by ERISA-governed health plans on an out-of-network basis can assert state-law claims to hold plans to their payment promises without running afoul of ERISA's preemption provision ... So held the Third Circuit ... reversing the trial court's dismissal of a provider's state law claims for breach of contract and promissory estoppel.... [M]edical providers with claims arising from insurers' broken promises to pay set rates for specific treatments need not shy away from pleading these claims under applicable state law." [The Plastic Surgery Center, P.A. v. Aetna Life Ins. Co., No. 18-3381 (3d Cir. Jul. 17, 2020)] Icon to read more

Arent Fox

Policies to Address Surprise Billing Could Reduce Health Insurance Premiums

"More than 10% of health plan spending is attributable to ancillary and emergency services that commonly surprise-bill. Reducing payment for these services by 15% would reduce premiums by 1.6% ($67 per member per year), and reducing average payment to 150% of traditional Medicare rates -- the high end of payments to other specialists -- would reduce premiums by 5.1% ($212 per member per year). These savings would reduce aggregate premiums for the nation's commercially insured population by approximately $12 billion and $38 billion, respectively." Icon to read more

American Journal of Managed Care

Sirens and Flashing Lights: With No Legal Guardrails for Patients, Ambulances Drive Surprise Medical Billing

"[S]tudies show the majority of ambulance rides leave patients saddled with hundreds of dollars in out-of-network medical bills. Yet ground ambulances have mostly been left out of federal legislation targeting 'surprise' medical bills, which happen when out-of-network providers charge more than insurers are willing to pay, leaving patients with the balance." Icon to read more

Kaiser Health News

President Trump Issues Expansive Order Aimed at Lowering Drug Prices

"The order covers all drugs paid for by Medicare -- including those sold at pharmacies -- and not just those administered in doctors' offices, as the president initially announced.... But it is unclear whether the White House has the authority to put the expansive order into effect. And in an odd twist, in calling for the secretary to set up the model programs, the administration is relying on its authority under the [ACA], which Mr. Trump and his fellow Republicans are trying to overturn in the Supreme Court." Icon to read more

The New York Times; subscription may be required

Benefits in General

[Official Guidance]

Text of IRS Notice 2020-71: Special Per Diem Rates for 2020-2021 (PDF)

"This annual notice provides the 2020-2021 special per diem rates for taxpayers to use in substantiating the amount of ordinary and necessary business expenses incurred while traveling away from home ... The special M&IE rates for taxpayers in the transportation industry are $66 for any locality of travel in the continental United States (CONUS) and $71 for any locality of travel outside the continental United States (OCONUS).... The rate for any CONUS or OCONUS locality of travel for the incidental expenses only deduction is $5 per day.... For purposes of the high-low substantiation method, the per diem rates ... are $292 for travel to any high-cost locality and $198 for travel to any other locality within CONUS." Icon to read more

Internal Revenue Service [IRS]

Press Releases

NAGDCA Announces Winner of 2020 Art Caple President's Award for Excellence
National Association of Government Defined Contribution Administrators [NAGDCA]

Most Popular Items in the Previous Issue

Text of DOL Temporary Rule: Paid Leave Under the FFCRA
Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

Text of Updated DOL Q&As: Families First Coronavirus Response Act (FFCRA)
Wage and Hour Division [WHD], U.S. Department of Labor [DOL]

View COVID-19 News and Resources

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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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