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What Can Health Plans Do Now That the Federal Government Has Stopped Making CSR Payments?

"The decision to stop paying CSRs arrives just after products were 'locked down' for 2018. Insurers and states that assumed CSR payment may wish to raise rates, but doing so this late in the year raises operational challenges in states served by the federal government's healthcare.gov. Some insurers may now want to exit the ACA Marketplace in 2018, but regulators might block an exit.... The confluence of business, operational and policy problems that the non-payment of CSRs creates at this point in the year is without precedent for both insurers and regulators."

For Health Insurers, Court Decisions Continue to Complicate Risk Corridors Program Payments

"Although an insurer can still properly file a case now, the ruling in BCBS suggests another possible approach: presenting the issue after the numbers are fully tabulated for the entire three-year risk corridors program. Such an approach could help courts focus on the ultimate issue: whether a statute stipulating that an agency 'shall pay' under specified conditions imposes a legal obligation on the government to make payment when those conditions are met." [Blue Cross & Blue Shield of N.C. v. U.S., No. 16-651C (Fed. Cl. Apr. 18, 2017) ]

Continuing Assaults on Surprise Out-of-Network Bills

"In September California Governor Brown signed Assembly Bill 72 requiring that policies issued on or after next July 1 provide that if an insured patient receives covered services at an in-network facility from an out-of-network provider, the patient needn't pay more than the in-network provider rate. There is an exception when the patient has specifically consented to the higher rate; that bill wouldn't be a surprise.... New York State protects patients from surprise bills not only when they are treated at an in-network facility but also when referred by an in-network physician to an out-of-network physician or service provider, including laboratory services."

What Does Illinois' New Employee Sick Leave Act Mean to Employers?

"[The Employee Sick Leave Act], which takes effect on January 1, 2017, provides... that an employee may use 'personal sick leave benefits' provided by the employer for absences due to an illness, injury or medical appointment of the employee's child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent ... If the employee is permitted to use certain benefits for their own illness or injury, the employer may be required to allow an employee to use those benefits for family care purposes."

CMS Starts Implementing ACA Transparency Requirements

"Health insurance issuers will need to submit data on coverage denials, appeals and grievances, and plan decisions overturned by an external reviewer. They will also have to provide links to the member information they provide on several important topics: out-of-network liability, grace periods, medical necessity and prior authorization, and drug formulary exceptions.... While CMS has not yet mentioned its intentions for the transparency data, it is probable that the agency will use this data to inform its oversight activities at some point."

IRS Proposes New 457 Regs for Nonqualified Deferred Compensation Plans of Tax-Exempt and Governmental Employers

"IRS Notice 2007-62 had signaled the IRS's intent to impose restrictive rules for what constitutes a 'substantial risk of forfeiture' under section 457(f), consistent with the rules under Code section 409A. However, the proposed regulations defining a section 457(f) substantial risk of forfeiture are more flexible and accommodating for designing deferred compensation arrangements than had been described in the Notice."

The Push for Paid Sick, Family and Medical Leave in Minnesota: Minneapolis Passes Ordinance

"Although none of the bills addressing statewide paid sick and safe time, paid family and medical leave or state pre-emption of local laws [have] passed through the Minnesota Legislature, Minneapolis passed its Sick and Safe Time Ordinance on May 27, 2016, and St. Paul continues to consider the possibility of extending paid sick and safe time to all employees in Saint Paul."

The DOL's New Fiduciary Rules for Retirement Investment Advice

"In applying the new fiduciary definition, a critical threshold question is whether a communication is a 'recommendation.' Borrowing from FINRA's definition, the final regulation defines 'recommendation' as 'a communication that, based on its content, context and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action.' The DOL also borrowed from select SEC and FINRA interpretations about recommendations regarding the degree of individually tailored communications, lists of securities, aggregating communications, and disregarding whether the source is a person or a computer."

DOJ Antitrust Head Remains Focused on Health Care in Era of Consolidation

"When reviewing a potential merger, [Assistant Attorney General Bill Baer] stated that the government will look at the future of the market -- not at how the markets appear today -- and will evaluate how local companies may increasingly compete regionally or nationally. In addition, Baer noted ... [t]he 'countervailing market power' justification may not be effective moving forward.... The government will investigate to ensure that mergers are not designed simply to take advantage of higher reimbursement rates even when there is no change in care provided."

Fitbit Agrees to Sign Business Associate Agreements and Take on HIPAA Compliance

"For a number of years, Fitbit avoided HIPAA compliance by not engaging in data sharing with health plans or healthcare providers. In a turn of events this week, Fitbit announced it will enter into HIPAA business associate agreements with covered entity health plans and self-insured employers that will offer Fitbit's wellness platform to employees and insured individuals. This means that Fitbit will have to implement the security controls required by the HIPAA Security Rule, but only with respect to data it is receiving from or collecting on behalf of covered entity health plans or healthcare providers."