Health & Welfare Plans Newsletter

February 18, 2021

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[Official Guidance]

Text of HHS Final Rule: Delay of Effective Date of Removal of Safe Harbor Protection for Rebates Involving Prescription Pharmaceuticals and Creation of New Safe Harbor Protection for Certain Point-of-Sale Reductions in Price on Prescription Pharmaceuticals and Certain Pharmacy Benefit Manager Service Fees

"As required by an order issued by the U.S. District Court for the District of Columbia, this action provides notice of the delay of the effective date of certain amendments to the safe harbors to the Federal anti-kickback statute that were promulgated in a final rule ... published on November 30, 2020. The new effective date for these certain amendments is January 1, 2023."

Office of Inspector General [OIG], U.S. Department of Health and Human Services [HHS]

[Guidance Overview]

EEOC Withdraws Proposed Rules on Employer Wellness Incentives, Leaving Uncertain the Permissibility of COVID-19 Vaccination Incentives

"In the absence of specific guidance from the EEOC, if employers offer a vaccine incentive, they must be mindful of employees who cannot receive a COVID-19 vaccination because of religious beliefs or other medical conditions."

K&L Gates

[Guidance Overview]

'Outbreak Period' Ending February 28, 2021?

"Without an extension of this 12-month expiration date, [the author] believes the clock starts again on March 1, 2021 for COBRA, certain HIPAA special enrollment, and COBRA qualifying events and claims appeals."

TRI-AD

[Guidance Overview]

Upcoming Deadline iconClock May Begin Ticking Soon for Important Deadlines Suspended Due to COVID-19

"Adding to the confusion is a one-year statutory limit that applies to extensions mandated by the Departments. Since the Outbreak Period Extensions were first effective as of March 1, 2020, that one-year limit will be up shortly.... [P]lans and plan administrators should decide whether to end the extensions on midnight on February 28, 2021 based on this one-year limit."

Groom Law Group

[Guidance Overview]

Implementing the New Requirements for Transparency in Healthcare Coverage

"What information has your carrier or TPA provided to demonstrate the ability to meet the new NQTL comparative analysis reporting requirements? ... What additional provider selection support does your organization anticipate will be needed for your plan participants and beneficiaries to meet the new advanced EOB requirements under the CAA? ... How will your organization communicate information about the new identification card content requirements to your plan members?"

Gallagher

[Guidance Overview]

California's (Modern) Family Leave

"[As] of 2021, the mileage threshold is gone, and any company with five employees anywhere in the U.S. (even if just one person in California) must provide 12 weeks of family leave to California employees.... [T]he qualifying reasons that open the door to CFRA leave have expanded.... [T]wo exceptions to CFRA leave have been eliminated."

Seyfarth

Court Dismisses Class Action COBRA Claims of Former Employee Who Still Had Coverage

"Perhaps because of the employee's clearly lacking legal argument, the court gave the board a pass on several alleged deficiencies in its COBRA notice (specifically, the alleged omission of the date of the qualifying event, the name of the plan, and the plan administrator's contact information)." [Carter v. Southwest Airlines Co. Bd. of Trustees, No. 20-1381 (M.D. Fla. Dec. 14, 2020)]

Thomson Reuters / EBIA

An Alternative Approach to an ERISA Litigation Conundrum

"A better approach would be for courts either to limit the holding in Harlick to defenses that apply to the plan member or limit the holding in Spinedex to situations ... where the provider has made it clear that it is filing an appeal in its capacity as an assignee (i.e., acting at least in part in its own interest) and not as an authorized representative of the plan member." [Beverly Oaks Physicians Surgical Center, LLC v. Blue Cross Blue Shield of Illinois, No. 19-55820 (9th Cir. Dec. 17, 2020)]

Foley & Lardner LLP

Exceptional Usefulness and Quality iconThe Widespread Availability of COVID-19 Vaccines May Be Here Sooner Than You Think: An Action Plan for Employers

"[O]nly 9% of respondents said they were considering requiring employees to take the vaccine as a condition of their employment, while 64% said they were not thinking about mandating it.... [M]ore than three-quarters of employers (78%) say they will consider encouraging workers to get the vaccine, with only 9% saying this was not a tactic they were considering."

Fisher Phillips

The New Better: Strategic Health Plan Innovation in a Post-Pandemic Environment

10 pages. "Digital health apps (47%), self-management tools (41%), and navigation and consumer engagement platforms (41%) have emerged as lead areas of interest for benefits leaders ... 36% of employers are interested in a virtual-directed health plan model, with a virtual primary care physician who directs all care, including coordination with the traditional brick-and-mortar health system."

Aon

Employers, Consider Updating Your Call-In Procedures

"Maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave.... Include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind.... Set a deadline for the employee to report an absence." [Soutner v. Penn State Health, No. 20-1763 (3rd Cir. Jan. 13, 2021; unpub.)

FMLA Insights

Proposal Would Provide COBRA Subsidies for Involuntary Termination or Reduction in Hours

"The idea is simple -- if people need continuing health care coverage (COBRA coverage) because they are involuntarily terminated from employment or have a reduction in hours of employment, they only have to pay 15% of the applicable premium through September 30, 2021. Great. But it is not so simple."

Proskauer

Biden Administration Appears to Withdraw Final Rule Aimed at Streamlining Prior Authorization

"The Biden administration appears to have withdrawn a rule finalized last minute by the Trump administration that aims to streamline prior authorization, a major source of provider administrative burden.... [A] press release no longer appears on CMS' website, and the rule does not appear in the Federal Register. CMS did not say why the rule appeared to be withdrawn."

FierceHealthcare

[Opinion]

Impact of Policy Options for Reducing Hospital Prices Paid by Private Health Plans

"Regulating prices for all private plans, by either setting or capping prices, has the potential for a significant impact on hospital spending.... Increasing hospital price transparency could help reduce prices but is unlikely to reduce spending as much as regulating hospital prices could.... An increase in hospital market competition, even one that is large by historical standards, could also reduce prices but is unlikely to save as much as regulating hospital prices for all private plans."

RAND Corporation

Benefits in General

2021 Employee Benefit Plan Opportunities for Employer Consideration

"[1] Student loan repayment by employer under an educational assistance program.... [2] Student loan repayment by employee under a 529 plan.... [3] Carryover of health and dependent care flexible spending account (FSA) amounts ... [4] Setting up a 401(k) plan and obtaining a tax credit for doing so.... [5] Penalty-free withdrawals from 401(k) plan to pay for birth or adoption of a child."

Jackson Lewis P.C.

New ERISA Ruling May Cut Claimants' Guesswork About Timeliness

"U.S. District Court for the Northern District of Illinois joined a growing chorus of rulings that have interpreted the prior version of the ERISA claim regulations to require what the revised regulations now explicitly mandate." [Hewitt v. Lincoln Financial Corp., No. 18-8235 (N.D. Ill. Feb. 2, 2021)]

DeBofsky Sherman Casciari Reynolds P.C.

Press Releases

OneDigital Acquires Keever & Associates, Inc.
OneDigital Health and Benefits

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BenefitsLink Health & Welfare Plans Newsletter, ISSN no. 1536-9595. Copyright 2021 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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