by admin | Aug 2, 2021 | ACA, Compliance, Group Benefit Plans
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.[1] 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.[2][3],
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.[4]
Although some states have enacted laws to reduce or eliminate balance billing, these efforts have created a patchwork of consumer protections.[5] 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.
Cost-Sharing Amounts:
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.
Balance Billing:
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
[1] 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/.
[2]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.
[3]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.
[4] 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.
[5] 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.
by ckistler | Jan 7, 2021 | Compliance, Work From Home
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.
Minimum Wage
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.
Breaks
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.
Workplace Posters
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.
FMLA Eligibility
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.
Verifying I-9s
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.
Equipment
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
by admin | Apr 12, 2019 | Compliance, Employee Benefits
Summer internships offer students opportunities to gain real-world experience and hands-on career development. Conversely, internship programs give employers access to highly motivated and educated young workers and give junior managers more experience training and supervising. There are benefits for everyone involved.
However, there are some people risks that many employers overlook. One of the largest issues is determining what interns should be paid – or not paid.
The Department of Labor issued new guidance on January 5, 2018, that gives employers more flexibility in deciding whether to pay interns. A seven-criteria test is now used to determine if an internship may be unpaid, but the biggest change is that not all factors need to be met – no single factor is decisive, and the determination is made on the unique circumstances of each case.
If the job training program primarily provides professional experience that furthers a student’s educational goals, a student may not be considered an employee entitled to compensation. However, if students are doing work usually done by employees and are not receiving training and close mentoring, they should be paid wages. If there is any doubt, the best approach is to pay the student.
4 Reasons to Pay Interns
However, while it’s now legally permissible to classify more interns as unpaid, there are still compelling reasons to pay interns even when the internship does meet the criteria for unpaid status.
Unpaid internships tend to exclude students from lower- and middle-income backgrounds, who cannot afford not to work at paid jobs during the summer. In addition, they may need to pay up to several thousand dollars for course credit, in addition to coming up with funds for housing, clothing, and transportation related to the internship. This can put internships out of reach for some of the students who can benefit from them the most.
Unpaid internships may devalue the work paid employees are doing. After all, interns are working alongside regular employees — often doing some of the same tasks — and not being compensated for that work. This may send the message to employees that their work, or time, is not valued.
Unpaid internships can create a negative impression of your company. Customers or the community may see you as taking advantage of these students, which is not the message you want to portray. It’s a good community relations move to offer youth paid opportunities.
The work the unpaid intern is doing may actually be work that should be compensable. Improperly classifying an internship and not paying the student could result in wage claims that include back pay, penalties, and fines. To mitigate those risks, once again, the best approach is to pay the student.
Hiring summer students is a great way to help youth learn what it takes to be successful in business while helping employers get special projects completed. Plan ahead and structure your program so that your summer internship program is a great experience for everyone.
by Rachel Sobel
Originally posted on ThinkHR.com
by admin | Mar 20, 2019 | Compliance, Human Resources
Even when you proactively anticipate all the people risks that have the potential to impact your workplace, it’s easy to convince yourself there is no risk to you — that it will never happen here.
You may think no one at your workplace will harass anyone, no one will sue you over an honest mistake made in administering workers’ comp, no one will accidentally cause a data breach, or no one will ever bring a weapon to the office. You might think managing people risk is extremely time consuming and not worth the effort. Rationalizations like this may lead you to believe you don’t need to do anything to prevent these risks.
However, these risks are very real and can happen anywhere, at any time. It’s imperative you cover all of your bases, and it’s actually very straightforward, especially if you have a partner on your side.
Ideally, you will integrate people risk management (PRM) with your business practices so it’s not something extra to do; it’s a way of doing things you already do. PRM can be a lens through which you look through when evaluating your policies, procedures, and other aspects of how you run your company.
Acknowledging and Preventing Risk: A Four-Step Plan
When you are anticipating risk, you are thinking about what might happen. Then you need to look at what you should do when something actually happens and it’s time to acknowledge the risk.
Maybe a law passes or regulation is finalized, you realize your pay policies are not in compliance with the law, or an employee informs you they have been prescribed medical marijuana but you have a very strict drug use policy. What tools to do you have to deal with that?
Once you acknowledge the risks inherent in these issues, there are four steps to putting a plan of action into place to prevent the risks from causing damage to your company’s bottom line, its reputation, or to its level of employee engagement:
- Understand when and how the risk will impact you. If it’s a law or regulation, when does it go into effect? Is it an ongoing issue or something that can be addressed and then set aside? What are the potential penalties or pitfalls presented by the risk?
- Determine the best course of action. Does the situation require simple changes to operations or a more complicated approach? Where do changes need to be implemented — in handbook policy updates, procedural documentation, or new training programs?
- Craft communication strategies around the risk. Who needs to know what, and how much information should be given to people at each level? What information should be held back to preserve confidentiality? What information is only relevant to a handful of people (such as when an OSHA report is due) and what information is relevant to everyone (such as who needs sexual harassment training in your state)?
- Decide what change management activities are required to get buy-in. It’s one thing to decide to do something but getting people ready to embrace the change is another thing. If change management is good, then the changes will take hold, the implementation will be smooth, and the risks will be lower.
by Larry Dunivan, CEO of ThinkHR
Originally posted on ThinkHR.com
by admin | Mar 5, 2019 | Compliance, Human Resources
We are all drinking from a firehose of news and information — all day, every day. With this deluge of information, it can be difficult to determine what’s truly important to know. But being reactive is not acceptable. You need to know what’s coming, what affects you, and how it affects you.
Take, for example, legislative changes — 80 percent don’t require your attention, but the 20 percent you need to act on can easily get lost in the noise. It’s the 20 percent that expose your business to risk, but how do you know which 80 percent of information you can safely ignore?
Paying attention to the right information at the right time and setting the rest aside – knowing what you need to know – is essential to anticipating and understanding risk.
Where People Risk Management Comes In
People risk management starts with anticipating and understanding what presents risks to your business. It’s the idea you can look at something, understand it, digest it, and know if and how you need to act on this information. It’s a complicated sequence that no one has time to do, which is why you need a trusted and knowledgeable partner who:
- Knows what’s in the pipeline, such as newly-introduced bills that have the potential to become law.
- Keeps an eye on at what’s actually happening that may affect employers, such as when bills pass, agencies issue directives, or courts rule on cases.
- Determines what presents any type of risk to employers – such as litigation, noncompliance, or reduced employee engagement – and what doesn’t require action.
- Communicates promptly, consistently, and effectively, so you can use this knowledge to update your policies, stay on top of compliance requirements, and incorporate best practices in a way that reduces risk for your unique business.
Understanding People Risks: An Example
Often, when we think about risks to employers, we focus on insurable risks because they are well understood and easily quantifiable. It’s important to address these risks with solid prevention plans and insurance products, but it’s the uninsurable categories of risks, particularly people risks, that can catch us off guard and unprepared.
People risks can result not just in financial loss, but damage to employee engagement and company culture. They tend to be more subject to interpretation and can be very abstract.
Take, for example, the consequences of hiring the wrong employee or losing a valued employee. When this happens, you bear the cost of lost productivity and the time and money invested in recruiting, hiring, and onboarding. You also risk litigation if policies are not adequately documented, communicated, and followed should the employee claim discrimination, harassment, or disability accommodation is to blame for their separation from the company.
Hiring the wrong employee or losing a valued employee also carries the risk of negatively affecting employee engagement, which is a well-documented predictor of business outcomes. If it happens regularly, or there is even one instance handled poorly, your employment brand can be tarnished. For example, it could result in bad reviews on recruiting sites, chipping away at your recognition as an employer of choice.
Be in the Know
Whether it’s knowing how legislative changes affect your business or what risks are inherent in day-to-day employee management issues, people risk management starts with a solid knowledge base that evolves continuously to keep up with the latest employment trends, news, regulation, and information.
by Larry Dunivan, CEO of ThinkHR
Originally posted on ThinkHR.com
