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Health & Welfare Plans Newsletter

October 6, 2023

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[Official Guidance]

Text of CMS Guidance on Federal Independent Dispute Resolution (IDR) Process Partial Reopening of Dispute Initiation (PDF)

"Today, October 6, 2023, the Departments are reopening the Federal IDR portal for the initiation of new single disputes, including single disputes involving bundled payment arrangements. The ability to initiate new disputes involving air ambulance services as well as batched disputes for air ambulance and non-air ambulance items and services remains temporarily unavailable. IDR portal functionalities related to previously initiated batched disputes are also unavailable."  MORE >>

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

[Official Guidance]

Text of Agency FAQs, Part 62: Implementation of No Surprises Act in Light of the Recent Court Decision in Texas Medical Association v. HHS (PDF)

10 pages. "Q1: How should plans and issuers calculate a QPA for purposes of patient cost sharing, disclosures with an initial payment or notice of denial of payment, and disclosures and submissions required under the Federal IDR process following the decision in TMA III? ... Q2: What is the Departments' and OPM's general approach to implementation of the No Surprises Act with respect to the methodology for calculating a QPA following the decision in TMA III? ... Q3: Must plans and issuers continue to make disclosures about the QPA to nonparticipating providers, facilities, and providers or air ambulance services with an initial payment or notice of denial of payment, and in a timely manner upon request of the provider or facility? ... Q4: In light of the district court's decision in TMA III, how can certified IDR entities proceed in considering a QPA submitted to a Federal IDR payment dispute? ... Q5: In light of the district court's decision in TMA III, how should a plan or issuer proceed when the plan or issuer does not have the information necessary to decide a claim for payment within 30 calendar days after a bill for air ambulance services is transmitted by a nonparticipating provider of air ambulance services? ... Q6: Does the No Surprises Act continue to prohibit balance billing for air ambulance services provided by a nonparticipating provider of air ambulance services? ... Q7: May nonparticipating providers of air ambulance services balance bill participants, beneficiaries, and enrollees if a claim for air ambulance services is denied for lack of sufficient information (in other words, because it is not a 'clean claim')?"  MORE >>

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

[Official Guidance]

Text of 2023 IRS Form 1095-B: Health Coverage (PDF)

"This Form 1095-B provides information needed to report on your income tax return that the individuals in your tax family (yourself, spouse, and dependents) had qualifying health coverage (referred to as 'minimum essential coverage') for some or all months during the year." [Also available: 2023 IRS Form 1094-B: Transmittal of Health Coverage Information Returns]  MORE >>

Internal Revenue Service [IRS]

[Official Guidance]

Text of 2023 IRS Form 1095-C: Employer-Provided Health Insurance Offer and Coverage (PDF)

"This Form 1095-C includes information about the health insurance coverage offered to you by your employer.... If you purchased health insurance coverage through the Health Insurance Marketplace and wish to claim the premium tax credit, this information will assist you in determining whether you are eligible." [Also available: 2023 IRS Form 1094-C: Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns]  MORE >>

Internal Revenue Service [IRS]

[Guidance Overview]

No Surprises Act: Gag Clause Attestation Due December 31

"A 'gag clause' is defined as a contractual term that directly or indirectly restricts specific data and information that a plan or issuer can make available to another party. Gag clauses may be found in agreements between a plan or issuer and a health care provider, a network or association, a [TPA], or any other service provider.... The NSA requires that all group health plans attest annually that they do not have any agreements that include these types of provisions. The first of these attestations will be due on December 31[.]"  MORE >>


[Guidance Overview]

Departments Tighten Enforcement Related to Transparency's Machine-Readable File Requirements

"Deferred enforcement of the prescription drug pricing machine-readable file (MRF) moves from a general deferral policy to a case-by-case enforcement approach.... Departments clarify that the in-network MRF requirement to report applicable rates as dollar amounts will be enforced on a case-by-case basis ... [Group health plans] must now ensure that the prescription drug MRF is posted and that the INN MRF accurately reports applicable rates."  MORE >>


[Guidance Overview]

Health & Welfare Benefits Monthly Update, October 2023 (PDF)

34 presentation slides. Topics: [1] Washington update; [2] HSA issue update; [3] Enrollment issues; [4] Health & welfare developments; [5] MHPAEA Technical Release; and [6] Gag clause issues.  MORE >>

Alston & Bird

[Guidance Overview]

New York's Proposed PBM Regs

"This insight looks at regulations recently proposed in New York that could have a significant impact on PBM practices and, consequently, employee benefit plan benefits and costs in the state."  MORE >>


[Guidance Overview]

California Governor Signs Amendments to Expand, and Better Align, Paid Sick Leave Requirements Throughout the State

"[1] Increases the number of job-protected paid leave hours employees can receive and use each year under state law. [2] Extends some obligations and protections to employees covered by a CBA. [3] Creates a partial preemption of local standards."  MORE >>


Third Circuit Upholds Award of Front Pay Due to Employer's Interference with ERISA Benefits (PDF)

"The Third Circuit Court of Appeals has upheld a trial court's decision that an employer violated ERISA Section 510 when it terminated the employment of a participant in its self-insured health plan who had incurred large medical expenses and was expected to incur additional future expenses.... [T]his ruling could increase the incidence of requests for front pay in ERISA Section 510 cases involving termination of employment." [Kairys v. S. Pines Trucking, Inc., Nos. 22-1783, 22-2055 (3d Cir. Jul. 25, 2023)]  MORE >>

Thomson Reuters / EBIA

Fourth Circuit Establishes New Standards for Plaintiffs Seeking Unjust Enrichment as an Equitable Remedy Under ERISA

"The Fourth Circuit weighed in on the complex area of equitable relief under ERISA Section 502(a)(3), holding that recovery under an unjust enrichment theory may provide claimants with an alternate path to monetary relief under the statute. The Fourth Circuit departed from the reasoning in CIGNA Corp v. Amara, a 2011 Supreme Court case, holding that plaintiffs seeking monetary relief on a personal, rather than proprietary basis cannot recover under Section 502(a)(3)." [Rose v. PSA Airlines, Inc., No. 21-2207 (4th Cir. Sep. 11, 2023)]  MORE >>


District Court Vacates HHS Regulation on Counting Drug Manufacturer Assistance in ACA Cost-Sharing Limit (PDF)

"This case has important implications for HSA-compatible high-deductible health plans (HDHPs). The now-vacated provision followed an earlier HHS announcement that manufacturer assistance need not be counted toward a plan's annual cost-sharing limit when a medically appropriate generic equivalent was available, which some stakeholders viewed as implying that support must be counted absent a medically appropriate generic equivalent." [HIV and Hepatitis Policy Inst. v. HHS, No. 22-2604 (D.D.C. Sep. 29, 2023)]  MORE >>

Thomson Reuters / EBIA

Fiduciary Governance: Evaluating, Selecting, and Contracting with Pharmacy Benefit Managers

"Although selecting and evaluating PBMs follows the same general process used in selecting medical plan TPAs, knowing the nuanced differences will help tailor your RFP process. Understanding the key factors to consider during the evaluation process will help decision-makers inform their choices and realize cost-savings. PBM agreements are undoubtedly one of the most complicated benefits-related services agreements and should be negotiated carefully."  MORE >>

Nixon Peabody LLP

Benefits in General


ERISA Litigation Is a Hot Mess: Challenges and Potential Reforms

"[In] a series of recent rulings, mostly emanating from the U.S. Court of Appeals for the Sixth Circuit, courts have begun to question why ERISA civil procedure differs from civil procedures applied in all other civil actions heard in the federal courts. This article will outline several of the court-created problems with ERISA litigation and discuss what courts have begun to observe and point out, as well as discuss where this all may be headed."  MORE >>

DeBofsky Law

Employee Benefits Jobs

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American Trust Retirement

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Press Releases

Pontera and Savant Wealth Management Join Forces to Expand Wise Retirement Counsel


Webcasts and Conferences
(Health & Welfare Plans)

Plan Design


Center on Budget and Policy Priorities

Know Your Health & Welfare Plan Fiduciary Responsibilities: Avoiding Liability and Penalties

November 8, 2023 WEBINAR

Worldwide Employee Benefits Network [WEB]

Last Issue's Most Popular Items

A Plan Sponsor's Q&A Guide to Understanding and Implementing MHPAEA (PDF)

Baldwin Risk Partners

Agencies Press Play on Prescription Drug Machine-Readable File Requirement


Agencies Signal More Healthcare Coverage Mandates

Miller & Chevalier

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BenefitsLink® Retirement Plans Newsletter, ISSN no. 1536-9587.

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