What is the Fate of ACA? No Answers Yet from the Fifth Circuit.

Background

As noted in our previous December 2018 blog post, “Texas Judge Declares the Affordable Care Act Unconstitutional – What’s Next?,” and our October 2019 newsletter, “2019 End of Year Plan Sponsor “To Do” List (Part 1) Health & Welfare,” on December 14, 2018, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas ruled the whole of ACA to be unconstitutional in Texas v. United States of America, No. 4:18-cv-00167. The plaintiffs (certain Republican-led states and two individuals) alleged, and Judge O’Connor agreed, that the repeal of the individual mandate “renders legally impossible” the Supreme Court’s prior savings construction of ACA and that the individual mandate is not severable from the rest of ACA. Read More ›

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Must Drug Manufacturer Coupons Count Toward Annual Maximum Out-Of-Pocket Limits? Stay Tuned …

What is the Annual Maximum Out-Of-Pocket Limit (“MOOP”)?

MOOP is the most a participant must pay for covered services under a group health plan in a plan year. After a participant spends this amount on deductibles, copayments, and coinsurance, the health plan must pay 100% of the costs of covered benefits.

What are Drug Manufacturers’ Coupons (“Coupons”)?

Many drug manufacturers offer coupons to patients to reduce out-of-pocket costs. Drug manufacturers may offer these coupons for various reasons including: (1) to compete with another brand name drug in the same therapeutic class; (2) to compete with a generic equivalent when released; or (3) to assist consumers whose drug costs would otherwise be extremely high due to a rare or costly condition. Read More ›

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Authorized Representatives – Fresh Look at an Old Rule

Earlier this year, the Department of Labor issued an information letter explaining ERISA’s authorized representative requirement.  Below are some of the takeaways employers may want to consider.

1.     The Authorized Representative Requirement Under ERISA

ERISA’s claims procedure regulations expressly give participants and beneficiaries the right to appoint authorized representatives to act on their behalf in connection with a claim for benefits and an appeal of an adverse benefit determination.  Furthermore, when a claimant clearly designates an authorized representative to assist with a claim and/or appeal, the plan should direct the claimant’s information and notifications to the authorized representative to act on behalf of the claimant. Read More ›

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HHS to Start Randomly Selecting Health Plans for HIPAA Compliance – Are You Ready?

The CMS Division of National Standards, on behalf of HHS, is launching the Compliance Review Program (the “Program”) to ensure compliance among covered entities with HIPAA Administrative Simplification rules for electronic health care transactions.  HHS will randomly select health plans and clearinghouses to assess compliance with: (1) transaction formats; (2) code sets; and (3) unique identifiers.  Participants in the Program will also have to attest whether they comply with the operating rules, which are required by the ACA and are defined as “the necessary business rules and guidelines for the electronic exchange of information that are not defined by a standard or its implementation specifications.”

If HHS finds that a health plan or clearinghouse is not compliant, HHS has indicated that it will give the covered entity the opportunity to correct issues and achieve compliance, but may impose penalties on covered entities that do not achieve compliance.  Read More ›

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Wilderness Therapy – Should We Give It Another Look?

1.     What is it?

Wilderness therapy generally is traditional therapy in an outdoor setting that seeks to treat young adults with behavioral or substance use disorders.  Some programs are licensed and accredited and the treatment they provide can be expensive.  It is not uncommon for wilderness therapy to cost $500 per day or over $40,000 in total.

2.     Why should you care?

A participant in your employer-sponsored group health plan might submit a claim for wilderness therapy or request that your plan cover it.  If the terms of your plan exclude wilderness therapy or are ambiguous with respect to its coverage, and if you choose not to cover it, the participant might argue that your plan violates the Mental Health Parity Act of 1996 (MHPA) and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) (collectively, “Federal Mental Health Parity Law”). Read More ›

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Reminder for SBCs – Yes, Please!

The Affordable Care Act’s requirement that group health plans provide summaries of benefits and coverage (“SBCs”) to applicants and enrollees at various times is not new.  Nevertheless, because of the steep penalties for noncompliance (i.e., $1,000 per failure with respect to each participant or beneficiary and an excise tax of $100 per day with respect to each individual to whom such failure relates) we think it’s worthy of another blog post.  See our July 19, 2012 Newsletter Summary of Benefits and Coverage for Group Health Plans and follow-up August 11, 2016 blog post Departments Finally Publish Updated SBC Template and Instructions for additional background information. Read More ›

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New Plan Year, New Wellness Program – Some Things to Keep in Mind

As a follow-up to our recent blog Count Down to Open Enrollment – Some Quick Thoughts, below is a little more detail on how seemingly simple wellness program design changes can have significant legal consequences.

  • HIPAA – Employers feeling extra generous this plan year may want to increase their wellness program’s financial incentive.  It is important that such employers remain mindful of the limitations under HIPAA, i.e., 30% of the total cost of health plan coverage, or 50% for programs designed to prevent or reduce tobacco use.  As noted in our previous blog “Wellness Rules Under the ADA – Will There Ever Be Certainty?
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The Family Medical Leave Act and Benefit Plans: What comes first – the Law or the Employer’s Established Policy?

An employer that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year is subject to the Family Medical Leave Act (“FMLA”). Therefore, often when I am reviewing an employee benefits plan or policy I flag language that states something like: “You may be eligible to continue your coverage pursuant to the FMLA. Contact the company for more information.”  What does this mean?

Group Health Plan

For purposes of the FMLA, a group health plan is generally a plan that provides health care to employees, former employees, or families of such employees or former employees. Read More ›

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Wellness Rules Under the ADA – Will There Ever Be Certainty?

We previously blogged about the EEOC’s final rules, published in the Federal Register on May 17, 2016, that explain how the Americans with Disabilities Act (“ADA”) applies to employer sponsored wellness programs. These rules clarified when an employee health program, which includes a disability-related inquiry or medical examination, is considered “voluntary” under the ADA.  The EEOC’s rules stated, amongst other things, that an employer may offer incentives for employees who participate in a wellness program as long as the incentive does not exceed 30% of the total cost of self-only coverage.

We also previously blogged that this incentive provision was under scrutiny by the U.S. Read More ›

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Air Ambulance Services – What Does Your Plan Cover?

Due to the increased litigation of air ambulance claims, employers may want to review their plan language to see whether their group health plan covers air ambulance services, and if so, to better understand the terms of the coverage.

Below are three issues employers may want to consider:

  1. Expensive and Often Out-of-Network.  Air ambulance claims can be very expensive. While a 2014 report from the National Association of Insurance Commissioners (“NAIC”) indicates that the average air ambulance trip is 52 miles and costs between $12,000 to $25,000 per flight, recent litigation shows that these claims can go into the hundreds of thousands of dollars. 
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