By way of background, the Affordable Care Act (ACA) created the Patient-Centered Outcomes Research Institute (PCORI) to study clinical effectiveness and health outcomes. To finance the Institute’s work, a small annual fee—commonly called the PCORI fee—is charged on group health plans. Grandfathered health plans are not exempt.
Most employers do not have to take any action because employer-sponsored health plans are commonly provided through group insurance contracts. For insured plans, the carrier is responsible for calculating and paying the PCORI fee and the employer has no additional duties.
However, employers that sponsor self-funded group health plans are responsible for calculating, reporting, and paying this fee each year.
The PCORI fee applies for each plan year based on the plan year end date. The fee is an annual amount multiplied by the number of plan participants.
$2.66 per year, per participant, for plan years ending between October 1, 2020 and September 30, 2021.
$2.79 per year, per participant, for plan years ending between October 1, 2021 and September 30, 2022.
Payment is due by July 31st in the following calendar year in which the plan year ends. Because the due date in 2022 falls on Sunday, you may file the return on the next business day. This year, payment is due on Monday, August 1, 2022. Use IRS Form 720, Quarterly Federal Excise Tax Return.
Does the PCORI fee apply to all health plans?
The fee applies to all health plans and HRAs, excluding the following:
Plans that primarily provide “excepted benefits” (e.g., stand-alone dental and vision plans, most health flexible spending accounts with little or no employer contributions, and certain supplemental or gap-type plans).
Plans that do not provide significant benefits for medical care or treatment (e.g., employee assistance, disease management, and wellness programs).
Stop-loss insurance policies.
Health savings accounts (HSAs).
The IRS provides a helpful chart indicating the types of health plans that are, or are not, subject to the PCORI fee.
Which quarter do self-funded employers report on by August 1st?
For the purposes of the 2022 PCORI obligations, this would be the 2nd Quarter of 2022. So, when completing Form 720 be sure to fill in the circle for “2nd Quarter.”
Caution! Before taking any action, confirm with your tax department or controller whether your organization files Form 720 for any purposes other than the PCORI fee. For instance, some employers use Form 720 to make quarterly payments for environmental taxes, fuel taxes, or other excise taxes. In that case, do not prepare Form 720 (or the payment voucher), but instead give the PCORI fee information to your organization’s tax preparer to include with its second quarterly filing.
If I have multiple self-insured plans, does the fee apply to each one?
Yes. For instance, if you self-insure one medical plan for active employees and another medical plan for retirees, you will need to calculate, report, and pay the fee for each plan. There is an exception, though, for “multiple self-insured arrangements” that are sponsored by the same employer, cover the same participants, and have the same plan year. For example, if you self-insure a medical plan with a self-insured prescription drug plan, you would pay the PCORI fee only once with respect to the combined plan.
What about hybrid plans such as level-funded or partially self-funded?
The terms “level-funded” or “partially self-funded” are not defined by law, so it can mean different things to different carriers, vendors, and employers. In most cases, the terms are intended to refer to a self-funded group medical plan sponsored by an employer who has assumed all financial risk, other than protection under stop-loss insurance. However, this is not absolute. If your hybrid plan is in fact self-funded plan, then the employer is responsible for the paying the PCORI fee. If unsure, check with the state’s insurance commissioner or legal counsel.
Does the fee apply to HRAs?
Yes. The PCORI fee applies to HRAs, which are self-insured health plans, although the fee is waived in some cases. If you self-insure another plan, such as a major medical or high deductible plan, and the HRA is merely a component of that plan, you do not have to pay the PCORI fee separately for the HRA. In other words, when the HRA is integrated with another self-insured plan, you only pay the fee once for the combined plan.
On the other hand, if the HRA stands alone, or if the HRA is integrated with an insured plan, you are responsible for paying the fee for the HRA.
What about QSEHRAs? Does the fee apply?
Yes. A Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) is special type of tax-advantaged arrangement that allows small employers to reimburse certain health costs for their workers. Although a QSEHRA is not the same as an HRA, and the rules applying to each type are very different, a QSEHRA is a self-insured health plan for purposes of the PCORI fee. The IRS provides guidance confirming that small employers that offer QSEHRAs must calculate, report, and pay the PCORI fee.
What about ICHRAs and EBHRAs? Does the fee apply?
An Individual Coverage Health Reimbursement Arrangement (ICHRA) is a new type of tax-advantaged arrangement, first offered in 2020, that allows employers to reimburse certain health costs for their workers. The IRS has not provided specific guidance regarding ICHRAs and the PCORI fee, but it appears the fee applies since an ICHRA is a self-insured health plan.
An Excepted Benefits Health Reimbursement Arrangement (EBHRA) also is a self-insured health plan, but it is limited to “excepted benefits,” such as dental and vision care costs. So, the PCORI fee does not apply to EBHRAs.
Can I use ERISA plan assets or employee contributions to pay the fee?
No. The PCORI fee is an employer expense and not a plan expense, so you cannot use ERISA plan assets or employee contributions to pay the fee. (An exception is allowed for certain multiemployer plans (e.g., union trusts) subject to collective bargaining.) Since the fee is paid by the employer as a business expense, it is tax deductible.
How do I calculate the fee for a self-funded plan?
Multiply $2.66 or $2.79 (depending on the specific date the plan year ended in 2021) times the average number of lives covered during the plan year. “Covered lives” are all participants, including employees, dependents, retirees, and COBRA enrollees.
You may use any one of the following counting methods to determine the average number of lives:
- Average Count Method: Count the number of lives covered on each day of the plan year, then divide by the number of days in the plan year.
- Snapshot Method: Count the number of lives covered on the same day each quarter, then divide by the number of quarters (e.g., four). Or count the lives covered on the first of each month, then divide by the number of months (e.g., 12). This method also allows the option — called the “snapshot factor method” — of counting each primary enrollee (e.g., employee) with single coverage as “1” and counting each primary enrollee with family coverage as “2.35.”
- Form 5500 Method: Add together the “beginning of plan year” and “end of plan year” participant counts reported on the Form 5500 for the plan year. There is no need to count dependents using this method since the IRS assumes the sum of the beginning and ending of year counts is close enough to the total number of covered lives. If the plan is employee-only without dependent coverage, divide the sum by 2. (If Form 5500 for the plan year ending in 2021 is not filed by August 1, 2022, you cannot use this counting method.)
Note: For an HRA, QSEHRA or ICHRA, count only the number of primary participants (employees) and disregard any dependents.
How do I report and pay the fee for a self-funded plan?
Use Form 720, Quarterly Excise Tax Return, to report and pay the annual PCORI fee. Report all information for self-insured plan(s) with plan year ending dates in 2021 on the same Form 720. Do not submit more than one Form 720 for the same period with the same Employer Identification Number (EIN), unless you are filing an amended return.
The IRS provides Instructions for Form 720. Here is a quick summary of the items for PCORI:
- Fill in the employer information at the top of the form.
- In Part II, complete line 133(c) and/or line 133(d), as applicable, depending on the plan year ending date(s). If you are reporting multiple plans on the same line, combine the information.
- In Part II, complete line 2 (total).
- In Part III, complete lines 3 and 10.
- Sign and date Form 720 where indicated.
- If paying by check or money order, also complete the payment voucher (Form 720-V) provided on the last page of Form 720. Refer to the Instructions for mailing information.
If you self-insure one or more health plans or sponsor an HRA, you may be responsible for calculating, reporting, and paying annual PCORI fees. The fee is based on the average number of lives covered during the health plan year. The IRS offers a choice of different counting methods to calculate the plan’s average covered lives. Once you have determined the count, the process for reporting and paying the fee using Form 720 is fairly simple. For plan years ending in 2021, the deadline to file Form 720 and make your payment is August 1, 2022.
By Erin DeBartelo
Originally posted on Mineral
The Departments of Health and Human Services, Labor, and Treasury (the Departments) released Transparency in Coverage (TiC) rules in late 2020 that will require fully insured and self-funded plan sponsors of non-grandfathered group health plans to make important disclosures about in-network and out-of-network rates beginning July 1, 2022. To be ready to meet that deadline, plan sponsors should be coordinating efforts with carriers and third-party administrators (TPAs), as the case may be, to ensure they have the necessary information in the proper format to comply with the new TiC requirements.
Devil in the Details
The TiC rules originally required certain employers to provide “machine readable” files that disclose in-network rates, out-of-network charges and information relating to prescription drug coverage and costs by January 1, 2022. Last year the Departments delayed enforcement of the prescription drug coverage rules indefinitely until they issue additional guidance. However, plan sponsors should be taking steps now to ensure they can publish the required in-network negotiated rates and out-of-network allowed amounts as laid out in the TiC rules by the new July 1 deadline.
The first required file (In-Network Rate File) must show a plan’s negotiated rates for all covered items and services between the plan or carrier and all in-network providers. The second file (Allowed Amount File) will show both the historical payments to, and billed charges from, out-of-network providers. Plan sponsors must be sure this file includes at least 20 historical entries to safeguard individual privacy. The departments have indicated they will provide more specific guidance as to format and content, but so far have not released more details than what we know from the final rules.
The machine-readable files must include:
• For each option a group medical plan or carrier offers, the identifier for each such option. The identifier is either the insurer Health Insurance Oversight (HIOS) identifier, or if the plan or insurer does not have a HIOS number, the employer identification number (EIN).
• A billing code, which can include a Current Procedural Terminology (CPT) code, Healthcare Common Procedure Coding System (HCPCS) code, Diagnosis-related Group (DRG) code, or a National Drug Code (NDC) or any other common payer identifier. This content element also requires a plain language description for each billing code of each covered item or service.
In-Network Rate File
The In-Network Rate File must show:
• In-network rates for each item or service provided by in-network providers, including any negotiated rates, fee schedule rates used to determine cost-sharing, or derived amounts, whichever rate is applicable to the plan.
• If a rate is percentage-based, include the calculated dollar amount, or the calculated dollar amount for each National Provider Identifier (NPI) identified provider, if rates differ by providers or tiers. Bundled items and services must be identified by relevant code.
Allowed Amount File
The Allowed Amount File must show:
• Unique out-of-network allowed amounts and billed charges with respect to covered items or services, furnished by out-of-network providers during the 90-day period that begins 180 days prior to the publication date of the file.
• The plan or insurer must omit data for a particular item or service and provider when the plan or insurer would be reporting on payment of out-of-network allowed amounts for fewer than 20 different claims for payment under a single plan or coverage. These amounts must also be expressed as dollar amounts and associated with the NPI, Taxpayer Identification Number, and Place of Service Code for each network provider.
What Should You Do?
Plan sponsors will need to update the information in the required files no less frequently than monthly. This will likely require strong coordination with the carrier in an insured plan and with the TPA in a self-funded plan.
The Departments will require the files to be posted to a public website that consumers can use without providing individually identifiable information. The website should be open access and not require passwords, account setup, login credentials or any other barriers to accessing the required information.
The TiC rules recognize that a plan sponsor might not have its own public website on which it will be able to house the required files. But the rules permit plan sponsors to contract with a carrier, TPA or other third party to produce and house the information on a plan’s behalf. However, plans should be aware that they might ultimately remain responsible for any failures.
A carrier will be responsible for any failure if a plan has required it in writing to ensure a plan’s compliance. Self-funded plans can contract to have another entity provide and update required files, too, but the TiC rules do not provide the same level of protection for any failures by a third party in the self-funded context, so plans should be sure to review relevant indemnification provisions in any third-party vendor service agreement.
Many carriers and TPAs have begun reaching out to employer plan sponsors offering to assist in in providing, preparing, updating, and hosting the required files. Employers should be carefully reviewing their service agreements and related contracts to make certain they include specific provisions dealing with all aspects of the required transparency disclosures.
We will continue to monitor the guidance we expect to be coming soon as to certain administrative requirements regarding formatting and hosting of the required forms and provide updates as needed.
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Are you an employer that offers or provides group health coverage to your workers? Does your health plan cover outpatient prescription drugs — either as a medical claim or through a card system? If so, be sure to distribute your plan’s Medicare Part D notice before October 15.
Medicare began offering “Part D” plans — optional prescription drug benefit plans sold by private insurance companies and HMOs — to Medicare beneficiaries many years ago. People may enroll in a Part D plan when they first become eligible for Medicare.
If they wait too long, a late enrollment penalty amount is permanently added to the Part D plan premium cost when they do enroll. There is an exception, though, for individuals who are covered under an employer’s group health plan that provides creditable coverage. (“Creditable” means that the group plan’s drug benefits are actuarially equivalent or better than the benefits required in a Part D plan.) In that case, the individual can delay enrolling for a Part D plan while he or she remains covered under the employer’s creditable plan. Medicare will waive the late enrollment premium penalty for individuals who enroll in a Part D plan after their initial eligibility date if they were covered by an employer’s creditable plan. To avoid the late enrollment penalty, there cannot be a gap longer than 62 days between the creditable group plan and the Part D plan.
To help Medicare-eligible plan participants make informed decisions about whether and when to enroll in a Part D drug plan, they need to know if their employer’s group health plan provides creditable or noncreditable prescription drug coverage. That is the purpose of the federal requirement for employers to provide an annual notice (Employer’s Medicare Part D Notice) to all Medicare-eligible employees and spouses.
Federal law requires all employers that offer group health coverage including any outpatient prescription drug benefits to provide an annual notice to plan participants.
The notice requirement applies regardless of the employer’s size or whether the group plan is insured or self-funded:
- Determine whether your group health plan’s prescription drug coverage is creditable or noncreditable for the upcoming year (2022). If your plan is insured, the carrier/HMO will confirm creditable or noncreditable status. Keep a copy of the written confirmation for your records. For self-funded plans, the plan actuary will determine the plan’s status using guidance provided by the Centers for Medicare and Medicaid Services (CMS).
- Distribute a Notice of Creditable Coverage or a Notice of Noncreditable Coverage, as applicable, to all group health plan participants who are or may become eligible for Medicare in the next year. “Participants” include covered employees and retirees (and spouses) and COBRA enrollees. Employers often do not know whether a particular participant may be eligible for Medicare due to age or disability. For convenience, many employers decide to distribute their notice to all participants regardless of Medicare status.
- Notices must be distributed at least annually before October 15. Medicare holds its Part D enrollment period each year from October 15 to December 7, which is why it is important for group health plan participants to receive their employer’s notice before October 15.
- Notices also may be required after October 15 for new enrollees and/or if the plan’s creditable versus noncreditable status changes.
Preparing the Notice(s)
Model notices are available on the CMS website. Start with the model notice and then fill in the blanks and variable items as needed for each group health plan. There are two versions: Notice of Creditable Coverage or Notice of Noncreditable Coverage and each is available in English and Spanish:
Employers who offer multiple group health plan options, such as PPOs, HDHPs, and HMOs, may use one notice if all options are creditable (or all are noncreditable). In this case, it is advisable to list the names of the various plan options so it is clear for the reader. Conversely, employers that offer a creditable plan and a noncreditable plan, such as a creditable HMO and a noncreditable HDHP, will need to prepare separate notices for the different plan participants.
Distributing the Notice(s)
You may distribute the notice by first-class mail to the employee’s home or work address. A separate notice for the employee’s spouse or family members is not required unless the employer has information that they live at different addresses.
The notice is intended to be a stand-alone document. It may be distributed at the same time as other plan materials, but it should be a separate document. If the notice is incorporated with other material (such as stapled items or in a booklet format), the notice must appear in 14-point font, be bolded, offset, or boxed, and placed on the first page. Alternatively, in this case, you can put a reference (in 14-point font, either bolded, offset, or boxed) on the first page telling the reader where to find the notice within the material. Here is suggested text from the CMS for the first page:
“If you (and/or your dependents) have Medicare or will become eligible for Medicare in the next 12 months, a federal law gives you more choices about your prescription drug coverage. Please see page XX for more details.”
Email distribution is allowed but only for employees who have regular access to email as an integral part of their job duties. Employees also must have access to a printer, be notified that a hard copy of the notice is available at no cost upon request, and be informed that they are responsible for sharing the notice with any Medicare-eligible family members who are enrolled in the employer’s group plan.
CMS Disclosure Requirement
Separate from the participant notice requirement, employers also must disclose to the CMS whether their group health plan provides creditable or noncreditable coverage. To submit your plan’s disclosure, use the CMS online tool and follow the prompts. The process usually takes only 5 or 10 minutes to complete. It is due with 60 days after the start of the plan year; for instance, for calendar year plans that will be March 1, 2022. If the plan’s prescription drug coverage ends or its status as creditable or noncreditable changes, submit a new disclosure within 30 days of the change.
By Kathleen A. Berger
Originally posted on Mineral
The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit demographic workforce data, including data by race/ethnicity, sex and job categories. The filing by eligible employers of the EEO-1 Component 1 Report is required under section 709(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-8(c), and 29 CFR 1602.7-.14 and 41 CFR 60-1.7(a). Employers can find additional eligibility information at https://eeocdata.org/eeo1.
Update: New Filing Deadline for 2019 and 2020 EEO-1 Component 1 Data Collection
The deadline to submit and certify 2019 and 2020 EEO-1 Component 1 data HAS BEEN CHANGED. The new filing deadline is NOW Monday, August 23, 2021. After delaying the opening of the 2019 EEO-1 Component 1 data collection because of the COVID-19 public health emergency, the EEOC announced the opening of the 2019 and 2020 EEO-1 Component 1 data collection on April 26, 2021. Filers should visit https://EEOCdata.org/eeo1 for additional information.
Filers should visit the newly launched EEO-1 Component 1 website at https://EEOCdata.org/eeo1 for the latest filing updates and additional information. By visiting the Filer Support Center located at https://EEOCdata.org/eeo1/support, filers can request assistance as well as find helpful resources, including fact sheets and FAQs.
Eligible employers that have not received a 2019 and 2020 EEO-1 Component 1 notification letter via U.S. mail should contact the EEOC’s Filer Support Team at FilerSupport@eeocdata.org for assistance. Employers that have received the notification letter, may now create user accounts using the “Company ID” and “Passcode” provided in the notification letter.
Once a user account is created, there are two different ways to file the 2019 and 2020 EEO-1 Component 1 Report(s):
- ONLINE FORM (available beginning Monday, April 26, 2021)
Filers may enter their data into a secure data entry form via the EEO-1 Component 1 Online Filing System at https://EEOCdata.org/eeo1/signin.
- DATA FILE UPLOAD (available beginning Wednesday, May 26, 2021)
Filers may upload data files through the EEO-1 Component 1 Online Filing System. The format of the uploaded data file(s) must follow the file layout(s) set forth in the EEOC-approved specifications available beginning Wednesday, May 26, 2021 at https://EEOCdata.org/eeo1.
Originally posted on EEOC.gov
On July 1, 2021, the Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury (collectively, the Departments), along with the Office of Personnel Management (OPM) released an interim final rule with comment period (IFC), entitled “Requirements Related to Surprise Billing; Part I.” This rule related to Title I (the No Surprises Act) of Division BB of the Consolidated Appropriations Act, 2021 establishes new protections from surprise billing and excessive cost-sharing for consumers receiving health care items and services. This IFC implements many of the law’s requirements for group health plans, health insurance issuers, carriers under the Federal Employees Health Benefits (FEHB) Program, health care providers and facilities, and air ambulance service providers.
Background – Surprise Billing & the Need for Greater Protections
Most group health plans and health insurance issuers that offer group or individual health insurance coverage have a network of providers and health care facilities (in-network providers) that agree to accept a specific payment amount for their services. Providers and facilities that are not part of a plan’s or issuer’s network (out-of-network providers) usually charge higher amounts than the contracted rates the plans and issuers pay to in-network providers.
When a person with health insurance coverage gets care from an out-of-network provider, their health plan or issuer usually does not cover the entire out-of-network cost, leaving the person with higher costs than if they had been seen by an in-network provider. In many cases, the out-of-network provider may bill the individual for the difference between the billed charge and the amount paid by their plan or insurance, unless prohibited by state law. This is known as “balance billing.”
A “balance bill” may come as a surprise for many people. A surprise medical bill is an unexpected bill from a health care provider or facility. This can happen when a person with health insurance unknowingly gets medical care from a provider or facility outside their health plan’s network. Surprise billing happens in both emergency and non-emergency care.
In an emergency, an individual usually goes (or is taken) to the nearest emergency department. Even if they go to an in-network hospital for emergency care, they might get care from out-of-network providers at that facility.
For non-emergency care, an individual might choose an in-network facility or an in-network provider, but not know that a provider involved in their care (for example, an anesthesiologist or radiologist) is an out-of-network provider. In both emergency and non-emergency circumstances, the person might not be able to choose the provider or ensure that all of their care is from a participating provider. In addition to getting a bill for their cost-sharing amount (like co-payments, co-insurances, and any applicable deductibles), which tends to be higher for these out-of-network services, the individual might also get a balance bill from the out-of-network provider or facility. This is especially common in the context of air ambulance services, for which individuals generally do not have the ability to choose an air ambulance provider and have little or no control over whether the provider is in-network with their plan or coverage.
When individuals do not have an opportunity to select in-network providers, their health care costs go up overall. Surprise billing is often used as leverage by providers to get higher in-network payments, which result in higher premiums, higher cost sharing for consumers, and increased health care spending overall. Studies have shown that surprise bills can be high.
A recent study found that payments made to providers by people who got a surprise bill for emergency care were more than 10 times higher than those made by other individuals for the same care.
Out-of-network cost sharing and surprise bills usually do not count toward a person’s deductible and maximum out-of-pocket limit. Individuals with surprise bills may have to spend more out-of-pocket because they have to pay their out-of-network cost sharing and surprise billing amounts regardless of whether they have met their deductible and maximum out-of-pocket limits. Nine percent of individuals who got surprise bills paid more than $400 to providers, which may result in financial distress for consumers, given recent findings that show 40% of Americans struggle to find $400 to pay for an unexpected bill.,
Studies have shown that in the period from 2010-2016, more than 39% of emergency department visits to in-network hospitals resulted in an out-of-network bill, increasing to 42.8% in 2016. During the same period, the average amount of a surprise medical bill also increased from $220 to $628.
Although some states have enacted laws to reduce or eliminate balance billing, these efforts have created a patchwork of consumer protections. Even in a state that has enacted protections, they typically only apply to individuals enrolled in health insurance coverage, as federal law generally preempts state laws that regulate self-insured group health plans sponsored by private employers. In addition, states have limited power to address surprise bills that involve an out-of-state provider.
Summary of IFC
This IFC protects individuals from surprise medical bills for emergency services, air ambulance services provided by out-of-network providers, and non-emergency services provided by out-of-network providers at in-network facilities in certain circumstances.
If a plan or coverage provides or covers any benefits for emergency services, this IFC requires emergency services to be covered:
Without any prior authorization (i.e., approval beforehand).
Regardless of whether the provider is an in-network provider or an in-network emergency facility.
Regardless of any other term or condition of the plan or coverage other than the exclusion or coordination of benefits, or a permitted affiliation or waiting period.
Emergency services include certain services in an emergency department of a hospital or an independent freestanding emergency department, as well as post-stabilization services in certain instances.
This IFC also limits cost sharing for out-of-network services subject to these protections to no higher than in-network levels, requires such cost sharing to count toward any in-network deductibles and out-of-pocket maximums, and prohibits balance billing. These limitations apply to out-of-network emergency services, air ambulance services furnished by out-of-network providers, and certain non-emergency services furnished by out-of-network providers at certain in-network facilities, including hospitals and ambulatory surgical centers.
This IFC specifies that consumer cost-sharing amounts for emergency services provided by out-of-network emergency facilities and out-of-network providers, and certain non-emergency services furnished by out-of-network providers at certain in-network facilities, must be calculated based on one of the following amounts:
An amount determined by an applicable All-Payer Model Agreement under section 1115A of the Social Security Act.
If there is no such applicable All-Payer Model Agreement, an amount determined under a specified state law.
If neither of the above apply, the lesser amount of either the billed charge or the qualifying payment amount, which is generally the plan’s or issuer’s median contracted rate.
Similarly, cost-sharing amounts for air ambulance services provided by out-of-network providers must be calculated using the lesser of the billed charge or the plan’s or issuer’s qualifying payment amount, and the cost sharing requirement must be the same as if services were provided by an in-network air ambulance provider.
Under this IFC, surprise billing for items and services covered by the rule generally is not allowed.
Determining Out-of-Network Rates:
Under this IFC, the total amount to be paid to the provider or facility, including any cost sharing, is based on:
An amount determined by an applicable All-Payer Model Agreement under section 1115A of the Social Security Act.
If there is no such applicable All-Payer Model Agreement, an amount determined by a specified state law.
If there is no such applicable All-Payer Model Agreement or specified state law, an amount agreed upon by the plan or issuer and the provider or facility.
If none of the three conditions above apply, an amount determined by an independent dispute resolution (IDR) entity.
The Departments intend to issue regulations soon regarding IDR entities and the IDR process.
In limited cases, a provider or facility can provide notice to a person regarding potential out-of-network care, and obtain the individual’s consent for that out-of-network care and extra costs. However, this exception does not apply in certain situations when surprise bills are likely to happen, like for specified ancillary services connected to non-emergency care, such as anesthesiology or radiology services provided at an in-network healthcare facility.
Notice to Consumers:
This IFC requires certain health care providers and facilities to make publicly available, post on a public website, and provide to individuals a one-page notice about:
The requirements and prohibitions applicable to the provider or facility under Public Health Service Act sections 2799B-1 and 2799B-2 and their implementing regulations.
Any applicable state balance billing limitations or prohibitions.
How to contact appropriate state and federal agencies if someone believes the provider or facility has violated the requirements described in the notice.
Applicability Date & Comment Period
The regulations are generally applicable to group health plans and health insurance issuers for plan and policy years beginning on or after January 1, 2022. The HHS-only regulations that apply to health care providers, facilities, and providers of air ambulance services are applicable beginning on January 1, 2022. The OPM-only regulations that apply to carriers under the FEHB Program are applicable to contract years beginning on or after January 1, 2022. Written comments must be received by 5 p.m. 60 days after display in the Federal Register to be considered.
Visit https://www.cms.gov/files/document/cms-9909-ifc-surprise-billing-disclaimer-50.pdf to read more about the interim final rule.
Originally posted on CMS.gov
 Cooper, Z. et al., Surprise! Out-of-Network Billing for Emergency Care in the United States, NBER Working Paper 23623, 20173623; Duffy, E. et al., Policies to Address Surprise Billing Can Affect Health Insurance Premiums. The American Journal of Managed Care 26.9 (2020): 401-404; and Brown E.C.F., et al., The Unfinished Business of Air Ambulance Bills, Health Affairs Blog (March 26, 2021), doi: 10.1377/hblog20210323.911379, available at https://www.healthaffairs.org/do/10.1377/hblog20210323.911379/full/.
Biener, A. et al., Emergency Physicians Recover a Higher Share of Charges from Out-of-network Care than from In-network Care, Health Affairs 40.4 (2021): 622-628.
Board of Governors of the U.S. Federal Reserve System. Report on the Economic Wellbeing of U.S. Households in 2018. (May 2019). Available at https://www.federalreserve.gov/publications/files/2018-report-economic-well-being-us-households-201905.pdf.
 Sun, E.C., et al. “Assessment of Out-of-Network Billing for Privately Insured Patients Receiving Care in In-network Hospitals.” JAMA Internal Medicine, 179.11 (2019): 1543-1550. Doi:10.1001/jamainternmed.2019.3451.
 States that have enacted balance billing protections include Arizona, Colorado, Delaware, Indiana, Iowa, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New Mexico, North Carolina, Pennsylvania, Rhode Island, Texas, Vermont, and Washington.
According to Gallup, the number of days employees are working remotely has doubled during the pandemic. Some companies are even considering making a remote work arrangement permanent. While there are no laws that exclusively apply to remote workplaces, remote work does come with additional compliance risks. Below is our general guidance for employers.
Logging Hours and Preparing Paychecks
Make sure that employees are logging all of their time. Keep in mind that when working from home, the boundaries between work and home life are easy to blur. Employees may be racking up “off the clock” work, and even overtime, that they aren’t being paid for. While this may seem harmless enough in the moment, particularly if the employee isn’t complaining, unpaid wages can come back to bite you once the employee is on their way out the door.
Employees should be paid at least the minimum wage of the state where they physically work, whether this is a satellite office or their own home. Beyond that, it’s important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should follow the law that is most beneficial to the employee.
Remote employees must take all required break and rest periods required by law, as if they were in the workplace.
Harassment Prevention Considerations
You may have employees working in a state that has a lower bar for what’s considered harassment or that requires harassment prevention training. You can find this information on the State Law pages on the HR Support Center.
Remote work also comes with additional opportunities for harassment (even if it doesn’t rise to the level of illegal harassment) such as employees wearing clothing that crosses the line into inappropriate, roommates in the background unaware that they are on camera, or visible objects that other employees may consider offensive. You can prevent these sorts of incidents by having clear, documented expectations about remote meetings, communicating those expectations to your employees, and holding everyone accountable to them. It also wouldn’t hurt to occasionally remind everyone to be mindful that they and what’s behind them are visible to coworkers when they’re on video. That said, going overboard with standards that you’re applying to employees’ private homes can cause anxiety and morale issues, so make sure your restrictions have some logical business-related explanation.
Many of the laws related to workplace posters were written decades before the internet, and so their requirements don’t always make sense given today’s technology.
The safest option to ensure you’re complying will all posting requirements in one fell swoop is to mail hard copies of any applicable workplace posters to remote employees and let them do what they like with the posters at their home office. If you have employees in multiple states, you should send each employee the required federal posters, plus any applicable to the state in which they work.
Alternatively, more risk-tolerant employers often provide these required notices and posters on a company website or intranet that employees can access. A number of newer posting laws expressly allow for electronic posting, but this option is not necessarily compliant with every posting law out there.
Remote employees who otherwise qualify will be eligible for leave under the federal Family and Medical Leave Act (FMLA) if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.
According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” So, for example, if a remote employee working in Frisco, TX, reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from the company’s headquarters is immaterial.
In normal circumstances, the physical presence requirement of the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.
However, in March, the Department of Homeland Security (DHS) temporarily suspended the physical presence requirement for employers and workplaces that are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Inspection should instead be done remotely. As of the date of this newsletter, this temporary rule is still in effect.
In some states, an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.
That said, an employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Allowing them to take home their ergonomic office chair, for example, would probably not be an undue hardship and therefore something you should do.
Deciding Who Can Work from Home
You may offer different benefits or terms of employment to different groups of employees as long as the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. You should be able to support the business justification for allowing or requiring certain groups to telecommute.
Originally posted on ThinkHR