by admin | Jul 23, 2024 | Compliance
ACA PREVENTIVE CARE MANDATE REMAINS IN PLACE WITH AN EXCEPTION
In a recent decision, the U.S. 5th Circuit Court of Appeals upheld a key provision of the Affordable Care Act (ACA) that mandates private insurance cover preventive services without cost to patients. However, the court also ruled that the plaintiffs are exempt from complying with this mandate, setting the stage for potential future challenges. The appellate panel emphasized that the task force responsible for determining which preventive services should be covered must receive congressional confirmation, raising questions about the authority of groups making recommendations on contraception and vaccines.
The case stemmed from a lawsuit by Texas-based Christian companies Braidwood Management and Kelley Orthodontics, arguing that the ACA’s requirement to cover preventive care such as contraception, HPV vaccines, and HIV prevention drugs violated their religious beliefs. Initially, a district court sided with the employers, prompting an appeal by the Biden administration.
While the 5th Circuit overturned the lower court’s nationwide nullification of the preventive services mandate, it acknowledged concerns over the constitutional authority of the U.S. Preventive Services Task Force (USPSTF) to issue binding recommendations. The court’s decision requires USPSTF members to undergo presidential nomination and Senate confirmation moving forward.
The ruling’s implications are significant for the approximately 164 million Americans receiving employer-based health insurance, as it preserves access to vital preventive care services. Despite this immediate relief, advocacy groups caution that the decision could pave the way for future legal challenges that may threaten broader access to these essential health benefits.
EMPLOYER CONSIDERATIONS
Employers must ensure that their health plans continue to comply with the ACA’s preventive care mandate, which requires coverage of certain preventive services without cost-sharing for employees. This includes staying updated on the latest guidelines from the U.S. Preventive Services Task Force (USPSTF) and other relevant regulatory bodies to ensure that all mandated services are covered.
HIPAA PRIVACY RULE TO SUPPORT REPRODUCTIVE HEALTH CARE PRIVACY
The Biden administration’s new rule aimed at safeguarding the privacy of protected health information related to lawful reproductive health care went into effect in June. Under the HIPAA Privacy Rule to Support Reproductive Health Care Privacy, healthcare providers are now barred from disclosing sensitive information such as contraception use, pregnancy-related care, and infertility treatments to law enforcement without patient consent.
Effective June 25, with compliance required by December 23, 2024, the rule addresses concerns that arose following the overturning of Roe v. Wade in June 2022. This decision prompted concern that patients seeking lawful reproductive health services across state lines could face unwarranted scrutiny, compromising their privacy and potentially exposing them to legal repercussions.
The rule mandates that HIPAA-covered entities must now obtain a signed attestation that the request is not for prohibited purposes before disclosing protected health information (PHI) for specific purposes like health oversight, judicial proceedings, and law enforcement inquiries.
In the coming months, the Office for Civil Rights plans to release a standardized attestation form to facilitate compliance with the new regulations. This measure aims to ensure that individuals can confidently access reproductive health care without fear of their private medical information being misused or exploited.
EMPLOYER CONSIDERATIONS
Healthcare providers, health plans, and healthcare clearinghouses regulated under the Final Rule must update their Notice of Privacy Practices (NPPs) to align with the requirements for safeguarding reproductive healthcare privacy.
Employers should update HIPAA policies and procedures to ensure they specify when an attestation is required to disclose PHI and train employees on the new rules.
ENFORCEMENT OF PREGNANT WORKERS FAIRNESS ACT BEGINS
Effective June 18, 2024, the Equal Employment Opportunity Commission (EEOC) will enforce the final rule on the Pregnant Workers Fairness Act (PWFA), which mandates that employers provide reasonable accommodations to employees affected by pregnancy, childbirth, or related medical conditions. This applies to all employers with 15 or more employees, encompassing both public and private sectors. Employees are eligible for accommodation regardless of their tenure with the company.
Under the PWFA, employees can request accommodations akin to those permitted under the Americans with Disabilities Act (ADA). These include adjustments such as breaks, modified schedules, remote work, and changes to work environments, among others. Unlike the ADA, the PWFA stipulates four accommodations that employers are generally expected to grant without extensive documentation, such as access to water, restroom breaks, modified seating, and breaks for eating.
Notably, the PWFA requires employers to provide accommodation even if an employee is temporarily unable to perform essential job functions due to pregnancy-related conditions, provided the employee can resume these functions in the near future. Employers cannot mandate specific healthcare providers for medical certification unless certain conditions are met, ensuring flexibility for employees in documenting their accommodation needs.
Regarding undue hardship, employers must assess accommodations based on factors like those used under the ADA, considering the impact on business operations and resources. Accommodations that impose significant costs, disruptions, or alter the fundamental nature of business operations may qualify as undue hardship.
EMPLOYER CONSIDERATIONS
Employers are advised to update their policies and informational materials to reflect PWFA requirements, including handbook updates and the display of updated federal anti-discrimination posters. They should be prepared to accommodate reasonable requests promptly and without unnecessary bureaucratic hurdles, ensuring compliance with both federal and applicable state laws that offer greater protection to pregnant employees.
SUPREME COURT RULES ON MEDICATION ABORTION
The Supreme Court issued a unanimous decision in upholding the FDA’s current protocol for mifepristone, a drug used in medication abortions. The ruling dismissed a challenge based on procedural grounds, asserting that the challengers lacked standing to contest the FDA’s regulations. Despite this decision, the Court left open the possibility of future challenges related to access to the drug.
This ruling holds significant implications, as medication abortion, which includes mifepristone and misoprostol, accounts for a substantial majority of abortions in the United States. The Court’s decision preserves existing access to medication abortion amid rising restrictions on reproductive healthcare.
Currently, coverage for abortion, including medication abortion, varies widely among employers due to state laws and individual plan provisions. While some states mandate coverage, others prohibit it, creating a complex landscape for employers to navigate. Additionally, access to mifepristone can be challenging, as distribution is limited to certified providers, impacting both in-person and mail-order availability.
EMPLOYER CONSIDERATIONS
Employers should review their medical and pharmacy plans to ensure coverage of mifepristone and assess participant access to certified providers.
PREPARATION FOR FILING FORM 5500 FOR CALENDAR YEAR PLANS
ERISA plans with 100 or more plan participants as of the first day of the plan year are required to file IRS Form 5500 by the last day of the seventh month following the end of the plan year. See the IRS Form 5500 Corner for information.
Employers may obtain an automatic extension to file Form 5500, Form 5500-SF, Form 5500-EZ, Form 8955-SSA, or Form 5330 by filing IRS Form 5558. The extension will allow return/reports to be filed up to the 15th day of the third month after the normal due date.
Due to administrative issues within the IRS, electronic filing of Form 5558 through EFAST2 will be postponed until Jan. 1, 2025. Plan sponsors and administrators should continue to use a paper Form 5558 to request a one-time extension of time to file a Form 5500 series or Form 8955-SSA (up to 2½ months after the normal due date for Form 5500s or Form 8955-SSA).
QUESTION OF THE MONTH
Q: For small group clients that do not have to offer medical plans, should we discourage the use of a cafeteria plan for pre-tax premiums if they want to allow employees to drop the medical plan mid-year if they cannot afford it?
A: If you avoid using a cafeteria plan to allow employees to pay for medical premiums, the downside is that the employees must pay for the premiums on an after-tax basis. The upside is you avoid all of the Section 125 rules that generally require elections be irrevocable for the year, unless there is a qualifying life event (and insurance being too expensive is not a qualifying life event). So a good solution for employers that want to offer employees maximum flexibility is to allow them to pay premiums on an after-tax basis.
If giving employees the choice between pre-tax (through a cafeteria plan) or after-tax premiums is too confusing or administratively complex, the employer could choose NOT to offer a cafeteria plan and make all premiums be paid on an after-tax basis. Of course, if the employer does not think the financial hardship issue will occur too frequently, offering a cafeteria plan makes the most financial sense for the employees and the employer.
©2024 United Benefit Advisors
by admin | Jun 17, 2024 | Compliance
PREPARE NOW TO PAY THE PCORI FEE
The Patient-Centered Outcomes Research Institute (PCORI) fee funds research that evaluates and compares health outcomes, clinical effectiveness, and the risks and benefits of medical treatments and services. Effective through 2029, the IRS treats this fee like an excise tax, applied to all covered lives, including employees, retirees, spouses, and dependents. The fee is due on July 31, 2024.
For plan and policy years ending between October 1, 2023, and September 30, 2024, the PCORI fee is $3.22 per covered life, reflecting a 7.33% increase.
For plan and policy years ending between October 1, 2022, and September 30, 2023, the fee was $3.00 per covered life.
Employers with self-funded medical plans or applicable health reimbursement arrangements (HRAs) must use Form 720 to fulfill their reporting obligations and pay PCORI fees.
Calculating the PCORI fee requires employers to determine the average number of lives covered under a self-insured health plan using one of the IRS-approved methods.
EMPLOYER CONSIDERATIONS
Employers should be prepared to file Form 720 and pay the fee by July 31. Refer to the IRS Form 720 instructions, FAQs, and chart of applicable coverage types.
IRS RELEASES 2025 LIMITS FOR HDHPS AND HSAS
The IRS released the inflation-adjusted amounts for 2025 health savings accounts (HSAs), excepted benefit health reimbursement arrangements (EBHRAs), and high-deductible health plans (HDHPs).
2024 and 2025 HSA and HDHP Limits
|
2024 |
2025 |
|
Self-Only |
Family |
Self-Only |
Family |
| HSA Maximum Contribution |
$4,150 |
$8,300 |
$4,300 |
$8,550 |
| HSA Maximum Catch-up Contribution |
$1,000 |
$1,000 |
$1,000 |
$1,000 |
| HDHP Minimum Deductible |
$1,600 |
$3,200 |
$1,650 |
$3,300 |
HDHP Maximum Out-of-Pocket Expense
(In Network) |
$8,050 |
$16,100 |
$8,300 |
$16,600 |
Maximum EBHRA Contribution Limits
2024 $2,100
2025 $2,150
EMPLOYER CONSIDERATIONS
Employers offering these benefits must update all plan communications, open enrollment materials, and other relevant documentation to ensure that participants and beneficiaries are adequately informed about the new limits.
HHS FINALIZES SECTION 1557 NONDISCRIMINATION REGULATIONS
The U.S. Department of Health and Human Services (HHS) released new regulations under Section 1557 of the Affordable Care Act (ACA), known as the “Final Rule” nearly two years after the proposed rule was published. The regulations are set to become effective on July 5, 2024, though some provisions will be phased in later. The Final Rule reinstates certain provisions from the previous regulations and introduces additional clarifications and guidelines.
Section 1557 of the ACA aims to prevent discrimination in health programs or activities receiving federal financial assistance. The new regulations under the Final Rule extend coverage to all products offered by a health insurance issuer if any of these products receive federal financial assistance. This expansion will bring a significant number of entities under the purview of Section 1557 for the first time. Those entities may include:
- Insurers offering qualified health plans through the health exchange marketplace, large group market plans, excepted benefit plans, self-insured group health plans.
- Third-party administrators (TPAs) and pharmacy benefit managers (PBMs) if any part of their business is operated by an insurer subject to Section 1557 or if they are sub-recipients of federal financial assistance.
- Insurance agents or brokers paid by a covered entity receiving federal financial assistance.
EMPLOYER CONSIDERATIONS
The Final Rule significantly broadens the definition of a covered entity under Section 1557, extending its reach beyond the scope of the 2020 Rule. Consequently, insurers, TPAs, PBMs, insurance brokers, and other related entities need to review their business models to determine if they are now subject to Section 1557. If covered, these entities must ensure that their practices, policies, and products comply with the new regulations.
HHS updated its Frequently Asked Questions to offer further guidance on implementing the Final Rule.
MEDICAL DEBT CANCELLATION ACT INTRODUCED
On May 8, legislators introduced the Medical Debt Cancellation Act (S.4289), a proposal aiming to eliminate current medical debt in the United States. The Act involves the federal government paying off medical-related debts under specific conditions. Its multiple components, which would be phased in over time, seek to eradicate existing medical debt and limit the ways consumers can incur future debt. Currently in draft form, the Act is subject to amendment and further clarification before moving to a congressional vote.
A central provision of the Act is the establishment of a federal grant program administered by the Department of Health and Human Services (HHS) to fund the payment, or “cancellation,” of medical debts held by hospitals, provided the debt is out-of-pocket, unpaid, and owed for services rendered before the bill’s enactment. Excluded from the program are amounts covered by federal health care programs or other insurance plans. Hospitals would apply for these grants, with HHS prioritizing safety net hospitals that agree to cancel debts owed by low-income and vulnerable populations.
The Act also mandates that within one year of enactment, federally funded health care programs must eliminate medical debt collections. HHS would report annually to Congress on the progress of the debt forgiveness program, which would conclude once all eligible medical debt is canceled. Additionally, the Act proposes amendments to the Fair Debt Collection Practices Act, prohibiting the collection of pre-enactment medical debt and creating a private right of action for individuals harmed by violations.
While the Act aims to cancel existing medical debt, it does not ban future medical debt but imposes new billing and debt collection requirements on healthcare providers. These include assessing eligibility for charity care or financial assistance 45 days before the payment due date and providing related information to patients. The Act prohibits 501(c)(3) hospitals from charging uninsured patients more than generally billed amounts and bans interest on outstanding payments. Amendments to the Fair Credit Reporting Act would prevent credit reporting agencies from including medical debt information. The Act, still in the proposal stage, draws attention due to its potential broad impact.
GOVERNOR LAMONT SIGNS LEGISLATION EXPANDING CONNECTICUT PAID SICK DAYS LAWS
Governor Ned Lamont has signed new legislation expanding Connecticut’s paid sick leave laws to include a broader range of workers. The updated laws will ensure that more employees have access to paid sick leave, addressing gaps in the current system that covers only specific retail and service occupations. The goal of the legislation is to help retain young workers in the state, enhance employee productivity, and support economic growth by reducing the financial hardships of missing work due to illness.
Starting January 1, 2025, the law will apply to almost every occupation, excluding seasonal and certain temporary workers. The threshold for employer coverage will be reduced in phases: employers with at least 25 employees by January 1, 2025; those with at least 11 employees by January 1, 2026; and all employers by January 1, 2027. Additionally, the definition of a family member for sick leave purposes will be broadened, and the reasons for using paid sick leave will include public health emergencies.
EMPLOYER CONSIDERATIONS
Employers should prepare to update existing documents to reflect the new legislation.
QUESTION OF THE MONTH
Q: We have a client that never filed their 2022 plan year D1 and P2 files for RxDC reporting (assuming the carrier filed the D2-D8). Was the $100-a-day penalty in place for this filing in 2023?
A: There was penalty relief for 2020 and 2021, but not for 2022 filings. The penalty is found in Internal Revenue Code Section 4980D. The good faith relief came from the Departments of Labor, Health and Human Services, and Treasury in the form of FAQ 56 issued on December 23, 2022.
©2024 United Benefit Advisors
by admin | Apr 12, 2024 | Compliance
AFFORDABLE CARE ACT INFORMATION REPORTING
Beginning in 2024, most employers obligated to report under the Affordable Care Act (ACA) must file returns electronically by March 31, 2024. Employers filing fewer than 10 returns a year are allowed to use paper filing. Since March 31 falls on a weekend, the deadline this year is April 1, 2024.
Applicable large employers (ALEs) and smaller employers with self-insured health plans are required to e-file Forms 1095-C or 1095-B, as well as the accompanying Forms 1094-C or 1094-B, using the IRS’ Affordable Care Act Information Returns (AIR) system. Employers can apply for a 30-day extension for filing these forms by submitting Form 8809 by the original due date.
2023 HEALTH SAVINGS ACCOUNT CONTRIBUTIONS AND CORRECTIONS
For employers offering a health savings account (HSA), contributions toward the 2023 HSA limits and corrections for the 2023 calendar year must be made by April 15, 2024. Employers and employees can contribute to HSAs and make adjustments until the tax filing deadline, which is typically the individual’s tax filing due date.
Contributions that exceed the annual allowed limit are subject to a 6% tax on the excess contribution. That tax is assessed each year that the excess funds and their earnings remain in the account. Additionally, excess contributions are taxed as income.
Remember that using HSA funds for non-qualified expenses can result in significant penalties. Individuals under age 65 who use HSA money for non-qualified expenses will face a 20% penalty and pay income taxes on the withdrawal. After age 65, HSA funds may be used for non-qualified expenses without incurring the 20% penalty, however the funds will be considered taxable income.
EMPLOYER CONSIDERATIONS
Employers should ensure that employees are aware of the annual contribution limits and the deadline for contribution adjustments, as well as potential tax penalties.
PREPARING FOR JUNE PRESCRIPTION DRUG DATA (RXDC) REPORTING
The third season of Prescription Drug Data Collection (RxDC) reporting is underway, with the annual deadline set for June 1 each year, reporting on the previous calendar year. The Consolidated Appropriations Act requires all group medical plans to file a report with the Centers for Medicare & Medicaid (CMS) detailing the cost and other medical data for the group health plans’ prescription drug and other benefits, excluding excepted benefits. RxDC reporting is mandatory regardless of the group’s insurance status, size, or whether it is a grandfathered plan.
The filing must be completed electronically through the CMS Enterprise Portal. While employers are ultimately responsible for RxDC filing, most third-party administrators (TPAs) pharmacy benefit managers (PBMs) contracted to provide services to the group health plan will assist or submit filings on behalf of the group health plan.
Changes for 2024 RxDC Reporting
The average monthly premium calculation has been simplified. Instead of calculating per member per month, this is stated as the total annual premium divided by 12.
CMS has introduced restrictions on data aggregation. Data in files D1 and D3 through D8 must match the level of detail in the D2 file. This means that if the D2 data is specific to an employer’s plan, the data in files D3 through D8 must be equally specific.
EMPLOYER CONSIDERATIONS
- Insurance carriers will handle RxDC reporting on behalf of employers with fully insured plans. However, employers should confirm with carriers that the reporting has been completed and provide any necessary information.
- Employers with self-insured plans have final responsibility for RxDC filing. If they rely on TPAs or PBMs to assist with filing, it’s crucial to ensure that it is completed on time.
NEW YORK CITY WORKERS ALLOWED TO SUE FOR SICK LEAVE VIOLATIONS
On March 20, the New York City Council enacted a provision allowing an individual to initiate a private legal action against employers for non-compliance with the Earned Safe and Sick Time Act (ESSTA).
Individuals may now file lawsuits for alleged violations of the Act directly in court, bypassing the need to file an administrative complaint with the Department of Consumer and Worker Protection. Legal action can be initiated within two years from the date the individual became aware or should have been aware of the alleged violation and may seek penalties, injunctive and declaratory relief, legal fees, costs, and other pertinent damages against the violating entity or individual.
Under the Act, the amount of safe and sick leave provided is contingent on the size of the employer.
- Employers with 100 or more employees are required to provide up to 56 hours of paid leave annually.
- Employers with 5 to 99 employees must offer up to 40 hours of paid leave annually.
- Small employers with four or fewer employees and an annual net income exceeding $1 million are obligated to provide up to 40 hours of paid leave. In contrast, if the employer’s net income is less than $1 million, they are only required to offer up to 40 hours of unpaid leave annually.
- Employers with one or more domestic workers must provide up to 40 hours of paid leave annually, with an increase to 56 hours for employers with 100 or more domestic workers.
Eligible employees are entitled to use accrued safe and sick leave immediately, including newly hired personnel. In cases of unforeseen leave, employers cannot mandate advance notice but can request documentation for absences exceeding three consecutive workdays. Employers must provide employees with written policy details regarding safe and sick leave, including information about accrued, utilized, and total leave balances, either on paystubs or via an accessible electronic system.
Significant amendments to the were implemented on October 15, 2023, to clarify the Act:
- The assessment of an employer’s size is based on the total number of employees nationwide, determined by the peak number of concurrently employed staff within a calendar year.
- Full time, part-time, joint employees, and employees on leave of absence are included in the employee count for determining employer size.
- Employees telecommuting from outside New York City are not considered employed within the city.
- Employees based outside of New York City that are “expected to regularly perform work in New York City during a calendar year” will be counted, but only for hours worked by the employee within New York City.
EMPLOYER CONSIDERATIONS
In light of these developments, it is imperative for New York City employers to thoroughly review their safe and sick leave policies to ensure full compliance and mitigate the risk of potential litigation.
QUESTION OF THE MONTH
Q: If an employee carries her full family on a qualified high deductible health plan (QHDHP) but her children are mandated to also be enrolled in Medicaid, can she contribute the full family amount to her health savings account (HSA)?
A: If the owner of the HSA (employee) is only eligible for the HDHP and the employee has enrolled in family coverage, the employee can contribute the full family limit to the HSA even if the employee’s dependents are not otherwise eligible due to Medicaid.
Answers to the Question of the Week are provided by Kutak Rock LLP. Kutak Rock provides general compliance guidance through the UBA Compliance Help Desk, which does not constitute legal advice or create an attorney-client relationship. Please consult your legal advisor for specific legal advice.
| This information is general in nature and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors. |
| ©2024 United Benefit Advisors |
