Cadillac Tax May Finally Be Running Out of Gas

The Cadillac tax - a 40 percent tax on the most generous employer-provided health insurance plans - may be about to change. The Cadillac tax was supposed to take effect in 2018 but has been delayed twice and recently, the House voted to repeal this tax entirely. Read this blog post to learn more about this potential change.


The politics of healthcare are changing. And one of the most controversial parts of the Affordable Care Act — the so-called Cadillac tax — may be about to change with it.

The Cadillac tax is a 40% tax on the most generous employer-provided health insurance plans — those that cost more than $11,200 for an individual policy or $30,150 for family coverage. It was supposed to take effect in 2018, but Congress has delayed it twice. And the House recently voted overwhelmingly — 419-6 — to repeal it entirely. A Senate companion bill has 61 co-sponsors — more than enough to ensure passage.

The tax was always an unpopular and controversial part of the 2010 health law because the expectation was that employers would cut benefits to avoid paying the tax. But ACA backers said it was necessary to help pay for the law’s nearly $1 trillion cost and help stem the use of what was seen as potentially unnecessary care. In the ensuing years, however, public opinion has shifted decisively, as premiums and out-of-pocket costs have soared. Now the biggest health issue is not how much the nation is spending on healthcare, but how much individuals are.

“Voters deeply care about healthcare still,” said Heather Meade, a spokeswoman for the Alliance to Fight the 40, a coalition of business, labor and patient advocacy groups urging repeal of the Cadillac tax. “But it is about their own personal cost and their ability to afford healthcare.”

Stan Dorn, a senior fellow at Families USA, recently wrote in the journal Health Affairs that the backers of the ACA thought the tax was necessary to sell the law to people concerned about its price tag and to cut back on overly generous benefits that could drive up health costs. But transitions in healthcare, such as the increasing use of high-deductible plans, make that argument less compelling, he said.

“Nowadays, few observers would argue that [employer-sponsored insurance] gives most workers and their families’ excessive coverage,” he wrote.

The possibility of the tax has been “casting a statutory shadow over 180 million Americans’ health plans, which we know, from HR administrators and employee reps in real life, has added pressure to shift coverage into higher-deductible plans, which falls on the backs of working Americans,” said Rep. Joe Courtney (D-Conn.).

Support or opposition to the Cadillac tax has never broken down cleanly along party lines. For example, economists from across the ideological spectrum supported its inclusion in the ACA, and many continue to endorse it.

“If people have insurance that pays for too much, they don’t have enough skin in the game. They may be too quick to seek professional medical care. They may too easily accede when physicians recommend superfluous tests and treatments,” wrote N. Gregory Mankiw, an economics adviser in the George W. Bush administration, and Lawrence Summers, an economic aide to President Barack Obama, in a 2015 column. “Such behavior can drive national health spending beyond what is necessary and desirable.”

At the same time, however, the tax has been bitterly opposed by organized labor, a key constituency for Democrats. “Many unions have been unable to bargain for higher wages, but they have been taking more generous health benefits instead for years,” said Robert Blendon, a professor at the Harvard T.H. Chan School of Public Health who studies health and public opinion.

Now, unions say, those benefits are disappearing, with premiums, deductibles and other cost sharing rising as employers scramble to stay under the threshold for the impending tax. “Employers are using the tax as justification to shift more costs to employees, raising costs for workers and their families,” said a letter to members of Congress from the Service Employees International Union.

Deductibles have been rising for a number of reasons, the possibility of the tax among them. According to a 2018 survey by the federal government’s National Center for Health Statistics, nearly half of Americans under age 65 (47%) had high-deductible health plans. Those are plans that have deductibles of at least $1,350 for individual coverage or $2,700 for family coverage.

It’s not yet clear if the Senate will take up the House-passed bill, or one like it.

The senators leading the charge in that chamber — Mike Rounds (R-S.D.) and Martin Heinrich (D-N.M.) — have already written to Senate Majority Leader Mitch McConnell to urge him to bring the bill to the floor following the House’s overwhelming vote.

“At a time when healthcare expenses continue to go up, and Congress remains divided on many issues, the repeal of the Cadillac tax is something that has true bipartisan support,” the letter said.

Still, there is opposition. A letter to the Senate on July 29 from economists and other health experts argued that the tax “will help curtail the growth of private health insurance premiums by encouraging employers to limit the costs of plans to the tax-free amount.” The letter also pointed out that repealing the tax “would add directly to the federal budget deficit, an estimated $197 billion over the next decade, according to the Joint Committee on Taxation.”

Still, if McConnell does bring the bill up, there is little doubt it would pass, despite support for the tax from economists and budget watchdogs.

“When employers and employees agree in lockstep that they hate it, there are not enough economists out there to outvote them,” said former Senate GOP aide Rodney Whitlock, now a healthcare consultant.

Harvard professor Blendon agrees. “Voters are saying, ‘We want you to lower our health costs,’” he said. The Cadillac tax, at least for those affected by it, would do the opposite.

SOURCE: Rovner, J. ( 19 August, 2019) "Cadillac tax may finally be running out of gas" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/articles/obamacare-excise-tax-may-be-at-an-end


Federal Appeals Court Takes Up Case That Could Upend U.S. Health System

A federal appeals court in New Orleans has taken up a case against the Affordable Care Act. If the lower court's ruling in the case, Texas v. United States, is upheld, it has the potential to shake the nation's health care system. Read this article to learn more about this case.


The fate of the Affordable Care Act is again on the line Tuesday, as a federal appeals court in New Orleans takes up a case in which a lower court judge has already ruled the massive health law unconstitutional.

If the lower court ruling is ultimately upheld, the case, Texas v. United States, has the potential to shake the nation’s entire health care system to its core. Not only would such a decision immediately affect the estimated 20 million people who get their health coverage through programs created under the law, ending the ACA would also create chaos in other parts of the health care system that were directly or indirectly changed under the law’s multitude of provisions, such as calorie counts on menus, a pathway for approval of generic copies of expensive biologic drugs and, perhaps most important politically, protections for people with preexisting conditions.

“Billions of dollars of private and public investment — impacting every corner of the American health system — have been made based on the existence of the ACA,” said a friend-of-the-court brief filed by a bipartisan group of economists and other health policy experts to the 5th Circuit Court of Appeals. Upholding the lower court’s ruling, the scholars added, “would upend all of those settled expectations and throw healthcare markets, and 1/5 of the economy, into chaos.”

Here are five important things to know about the case:

It was prompted by the tax bill Republicans passed in 2017.

The big tax cut bill passed by the GOP Congress in December 2017 eliminated the penalty included in the ACA for failure to maintain health insurance coverage. The lawsuit was filed in February 2018 by a group of Republican attorneys general and two governors. They argued that since the Supreme Court had upheld the ACA in 2012 specifically because it was a valid exercise of Congress’ taxing power, taking the tax away makes the entire rest of the law unconstitutional.

Last December, Judge Reed C. O’Connor agreed with the Republicans. “In some ways the question before the court involves the intent of both the 2010 and 2017 Congresses,” O’Connor wrote in his decision. “The former enacted the ACA. The latter sawed off the last leg it stood on.”

State and federal Democrats are defending the law.

Arguing that the rest of the law remains valid is a group of Democratic attorneys general, led by California’s Xavier Becerra.

“Our argument is simple,” said Becerra in a statement last Friday. “The health and wellbeing of nearly every American is at risk. Healthcare can mean the difference between life and death, financial stability and bankruptcy. Our families’ wellbeing should not be treated as a political football.”

The Democratic-led House of Representatives has also been granted “intervenor” status in the case.

The Trump administration has taken several positions on the lawsuit.

The defendant in the case is technically the Trump administration. Traditionally, an administration, even one that did not work to pass the law in question, defends existing law in court.

Not this time. And it is still unclear exactly what the administration’s position is on the lawsuit. “They have changed their position several times,” Sen. Chris Murphy (D-Conn.) told reporters on a conference call Monday.

When the administration first weighed in on the case, in June 2018, it said it believed that without the tax penalty only the provisions most closely connected to that penalty — including requiring insurers to sell policies to people with preexisting conditions — should be struck down. The rest of the law should stay, the Justice Department argued.

After O’Connor’s ruling, however, the administration changed its mind. In March, a spokeswoman for the Justice Department said it had “determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal.”

Now it appears the administration is shifting its opinion again. In a filing with the court late last week, Justice Department attorneys argued that perhaps the health law should be invalidated only in the GOP states that are suing, rather than all states. It is unclear how that would work.

Legal scholars — including those who oppose the ACA — consider the case dubious.

In a brief filed with the appeals court, legal scholars from both sides of the fight over the ACA agreed that the lawsuit’s underlying claim makes no sense.

In passing the tax bill that eliminated the ACA’s tax penalty but nothing else, Congress “made the judgment that it wanted the insurance reforms and the rest of the ACA to remain even in the absence of an enforceable insurance mandate,” wrote law professors Jonathan Adler, Nicholas Bagley, Abbe Gluck and Ilya Somin. Bagley and Gluck are supporters of the ACA; Adler and Somin have argued against it in earlier suits. “Congress itself — not a court — eliminated enforcement of the provision in question and left the rest of the statute standing. So congressional intent is clear.”

It could end up in front of the Supreme Court right in the middle of the 2020 election.

Depending on what happens at the appeals court level, the health law could be back in front of the Supreme Court — which has upheld the health law on other grounds in 2012 and 2015 — and land there in the middle of next year’s presidential campaign.

Democrats are already sharpening their rhetoric for that possibility.

“President Trump and Republicans are playing a very dangerous game with people’s lives,” Senate Minority Leader Chuck Schumer told reporters on a conference call Monday.

Murphy said he is most concerned that if the lower court ruling is upheld and the health law struck down, Republicans “won’t be able to come up with a plan” to put the health care system back together.

“Republicans tried to come up with a replacement plan for 10 years, and they couldn’t do it,” he said.

SOURCE: Rovner, J. (9 July 2019) "Federal Appeals Court Takes Up Case That Could Upend U.S. Health System" (Web Blog Post). Retrieved from https://khn.org/news/federal-appeals-court-takes-up-case-that-could-upend-u-s-health-system/


U.S. Department of Labor's New Compliance Assistance Tool

On February 6, 2019, the U.S. Department of Labor announced the launch of the electronic version of their Compliance Assistance Tool (Handy Reference Guide to the Fair Labor Standards Act (FLSA)). This new version will assist employers by providing them with basic Wage and Hour Division (WHD) information, as well as links to other resources.

This electronic resource was created as a part of the WHD's efforts to modernize compliance assistance tools, as well as provide easy-to-use, accessible compliance information. In coexistence with worker.govemployer.gov, and other online tools, this tool will help improve employer understanding of federal labor laws and regulations.

View the digital Compliance Assistance Tool here.

Read the DOL's full press release here.

SOURCE: U.S. Department of Labor (6 February 2019) "U.S. Department of Labor Announces New Compliance Assistance Tool" (Web Press Release). Retrieved from https://www.dol.gov/newsroom/releases/whd/whd20190206-0


Developing guidance could free employers from ACA mandate

A future path for employers to avoid ACA employer mandate penalties was outlined in a recent IRS notice. Read this blog post from Employee Benefits News to learn more.


A recent IRS notice provides a future path for employers to avoid ACA employer mandate penalties by reimbursing employees for a portion of the cost of individual insurance coverage through an employer-sponsored health reimbursement arrangement.

While the notice is not binding and at this stage is essentially a discussion of relevant issues, it does represent a significant departure from the IRS’s current position that an employer can only avoid ACA employer mandate penalties by offering a major medical plan.

Here is everything employers need to know.

Background: As described in more detail in a previous update, the ACA currently prohibits (except in limited circumstances) an employer from maintaining an HRA that reimburses the cost of premiums for individual health insurance policies purchased by employees in the individual market.

Proposed regulations issued by the IRS and other governmental agencies would eliminate this prohibition, allowing an HRA to reimburse the cost of premiums for individual health insurance policies (individual coverage HRA) provided that the employer satisfies certain conditions.

The preamble of the proposed regulations noted that the IRS would issue future guidance describing special rules that would permit employers who sponsor individual coverage HRAs to be in full compliance with the ACA’s employer mandate. As follow up, the IRS recently issued Notice 2018-88, which is intended to begin the process of developing guidance on this issue.

On a high level, the ACA’s employer mandate imposes two requirements in order to avoid potential tax penalties: offer health coverage to at least 95% of full-time employees (and dependents); and offer “affordable” health coverage that provides “minimum value” to each full-time employee (the terms are defined by the ACA and are discussed further in these previous updates).

Offering health coverage to at least 95% of full-time employees: Both the proposed regulations and notice provide that an individual coverage HRA plan constitutes an employer-sponsored health plan for employer mandate purposes. As a result, the proposed regulations and notice provide that an employer can satisfy the 95% offer-of-coverage test by making its full-time employees (and dependents) eligible for the individual coverage HRA plan.

Affordability: The notice indicates that an employer can satisfy the affordability requirement if the employer contributes a sufficient amount of funds into each full-time employee’s individual coverage HRA account. Generally, the employer would have to contribute an amount into each individual coverage HRA account such that any remaining premium costs (for self-only coverage) that would have to be paid by the employee (after exhausting HRA funds) would not exceed 9.86% (for 2019, as adjusted) of the employee’s household income.

Because employers are not likely to know the household income of their employees, the notice describes that employers would be able to apply the already-available affordability safe harbors to determine affordability as it relates to individual coverage HRAs. The notice also describes new safe harbors for employers that are specific to individual coverage HRAs, intending to further reduce administrative burdens.

Minimum value requirement: The notice explains that an individual coverage HRA that is affordable will be treated as providing minimum value for employer mandate purposes.

Next steps: Nothing is finalized yet. Employers are not permitted to rely on the proposed regulations or the notice at this time. The proposed regulations are aimed to take effect on Jan. 1, 2020, if finalized in a timely matter. The final regulations will likely incorporate the special rules contemplated by the notice (perhaps with even more detail). Stay tuned.

This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

SOURCE: Simons, J.; Welle, N. (17 January 2019) "Developing guidance could free employers from ACA mandate" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/developing-guidance-could-free-employers-from-aca-mandate?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001

 


Compliance: Yearly Deadlines for Health Plans

Do you offer group health plans coverage to your employees? Employers that provide coverage are subject to multiple compliance requirements throughout the year. Certain requirements have been around for many years, while others have been recently added by the Affordable Care Act (ACA).

Continue reading for a summary of the many compliance requirements and their associated deadlines that health plan providers should be aware of throughout the year. Certain deadlines for non-calendar year plans may vary from what is outlined in this summary. This summary only covers recurring calendar year compliance deadlines. Other requirements that are not based on the calendar year are not included below.

January

Deadline Requirement Description

January 31

Form W-2 Deadline for providing Forms W-2 to employees. The ACA requires employers to report the aggregate cost of employer-sponsored group health plan coverage on their employees’ Forms W-2. The purpose is to provide employees with information on how much their health coverage costs. Certain types of coverage are not required to be reported on Form W-2.

This Form W-2 reporting requirement is currently optional for small employers (those who file fewer than 250 Forms W-2). Employers that file 250 or more Forms W-2 are required to comply with the ACA’s reporting requirement.

January 31 Form 1095-C or Form 1095-B—Annual Statement to Individuals Applicable large employers (ALEs) subject to the ACA’s employer shared responsibility rules must furnish Form 1095-C (Section 6056 statements) annually to their full-time employees. Employers with self-insured health plans that are not ALEs must furnish Form 1095-B (Section 6055 statements) annually to covered employees.

The Forms 1095-B and 1095-C are due on or before Jan. 31 of the year immediately following the calendar year to which the statements relate. Extensions may be available in certain limited circumstances. However, an alternate deadline generally is not available for ALEs that sponsor non-calendar year plans.

 

Update: The IRS extended the deadline for furnishing the 2018 employee statements, from Jan. 31, 2019, to March 4, 2019.  

February

Deadline Requirement Description

February 28   (March 31, if filing electronically)

Section 6055 and 6056 Reporting Under Section 6056, ALEs subject to the ACA’s employer shared responsibility rules are required to report information to the IRS about the health coverage they offer (or do not offer) to their full-time employees. ALEs must file Form 1094-C and Form 1095-C with the IRS annually.

Under Section 6055, self-insured plan sponsors are required to report information about the health coverage they provided during the year. Self-insured plan sponsors must generally file Form 1094-B and Form 1095-B with the IRS annually.

ALEs that sponsor self-insured plans are required to report information to the IRS under Section 6055 about health coverage provided, as well as information under Section 6056 about offers of health coverage. ALEs that sponsor self-insured plans will generally use a combined reporting method on Form 1094-C and Form 1095-C to report information under both Sections 6055 and 6056.

All forms must be filed with the IRS annually, no later than Feb. 28 (March 31, if filed electronically) of the year following the calendar year to which the return relates. Reporting entities that are filing 250 or more returns must file electronically. There is no alternate filing date for employers with non-calendar year plans.

March

Deadline Requirement Description

March 1   (calendar year plans)

Medicare Part D Disclosure to CMS Group health plan sponsors that provide prescription drug coverage to Medicare Part D eligible individuals must disclose to the Centers for Medicare & Medicaid Services (CMS) whether prescription drug coverage is creditable or not. In general, a plan’s prescription drug coverage is considered creditable if its actuarial value equals or exceeds the actuarial value of the Medicare Part D prescription drug coverage. Disclosure is due:

  • Within 60 days after the beginning of each plan year;
  • Within 30 days after the termination of a plan’s prescription drug coverage; and
  • Within 30 days after any change in the plan’s creditable coverage status.

Plan sponsors must use the online disclosure form on the CMS Creditable Coverage webpage.

July

Deadline Requirement Description

July 31

PCORI Fee Deadline for filing IRS Form 720 and paying Patient-Centered Outcomes Research Institute (PCORI) fees for the previous year. For insured health plans, the issuer of the health insurance policy is responsible for the PCORI fee payment. For self-insured plans, the PCORI fee is paid by the plan sponsor.

The PCORI fees are temporary—the fees do not apply to plan years ending on or after Oct. 1, 2019. This means that, for calendar year plans, the PCORI fees do not apply for the 2019 plan year.

July 31

Form 5500 Plan administrators of ERISA employee benefit plans must file Form 5500 by the last day of the seventh month following the end of the plan year, unless an extension has been granted. Form 5500 reports information on a plan’s financial condition, investments and operations. Form 5558 is used to apply for an extension of two and one-half months to file Form 5500.

Small health plans (fewer than 100 participants) that are fully insured, unfunded or a combination of insured/unfunded, are generally exempt from the Form 5500 filing requirement.

The Department of Labor’s (DOL) website and the latest Form 5500 instructions provide information on who is required to file and detailed information on filing.

September

Deadline Requirement Description

September 30

Medical Loss Ratio (MLR) Rebates The deadline for issuers to pay medical loss ratio (MLR) rebates for the 2014 reporting year and beyond is Sept. 30. The ACA requires health insurance issuers to spend at least 80 to 85 percent of their premiums on health care claims and health care quality improvement activities. Issuers that do not meet the applicable MLR percentage must pay rebates to consumers.

Also, if the rebate is a “plan asset” under ERISA, the rebate should, as a general rule, be used within three months of when it is received by the plan sponsor. Thus, employers who decide to distribute the rebate to participants should make the distributions within this three-month time limit.

September 30

Summary Annual Report Plan administrators must automatically provide participants with the summary annual report (SAR) within nine months after the end of the plan year, or two months after the due date for filing Form 5500 (with approved extension).

Plans that are exempt from the annual 5500 filing requirement are not required to provide an SAR. Large, completely unfunded health plans are also generally exempt from the SAR requirement.

October

Deadline Requirement Description

October 15

Medicare Part D – Creditable Coverage Notices Group health plan sponsors that provide prescription drug coverage to Medicare Part D eligible individuals must disclose whether the prescription drug coverage is creditable or not. Medicare Part D creditable coverage disclosure notices must be provided to participants before the start of the annual coordinated election period, which runs from Oct. 15-Dec. 7 of each year. Coverage is creditable if the actuarial value of the coverage equals or exceeds the actuarial value of coverage under Medicare Part D. This disclosure notice helps participants make informed and timely enrollment decisions.

Disclosure notices must be provided to all Part D eligible individuals who are covered under, or apply for, the plan’s prescription drug coverage, regardless of whether the prescription drug coverage is primary or secondary to Medicare Part D.

Model disclosure notices are available on CMS’ website.

Annual Notices

Type of Notice Description
WHCRA Notice The Women’s Health and Cancer Rights Act (WHCRA) requires group health plans that provide medical and surgical benefits for mastectomies to also provide benefits for reconstructive surgery. Group health plans must provide a notice about the WHCRA’s coverage requirements at the time of enrollment and on an annual basis after enrollment. The initial enrollment notice requirement can be satisfied by including the information on WHCRA’s coverage requirements in the plan’s summary plan description (SPD). The annual WHCRA notice can be provided at any time during the year. Employers with open enrollment periods often include the annual notice with their open enrollment materials. Employers that redistribute their SPDs each year can satisfy the annual notice requirement by including the WHCRA notice in their SPDs.

Model language is available in the DOL’s compliance assistance guide.

CHIP Notice If an employer’s group health plan covers residents in a state that provides a premium subsidy under a Medicaid plan or CHIP, the employer must send an annual notice about the available assistance to all employees residing in that state. the annual CHIP notice can be provided at any time during the year. Employers with annual enrollment periods often provide CHIP notice with their open enrollment materials.

The DOL has a model notice that employers may use.

Group health plans and health insurance issuers are required to provide an SBC to applicants and enrollees each year at open enrollment or renewal time. The purpose of the SBC is to allow individuals to easily compare their options when they are shopping for or enrolling in health plan coverage. Federal agencies have provided a template for the SBC, which health plans and issuers are required to use.

The issuer for fully insured plans usually prepares the SBC. If the issuer prepares the SBC, an employer is not also required to prepare an SBC for the health plan, although the employer may need to distribute the SBC prepared by the issuer.

The SBC must be included in open enrollment materials. If renewal is automatic, the SBC must be provided no later than 30 days prior to the first day of the new plan year. However, for insured plans, if the new policy has not yet been issued 30 days prior to the beginning of the plan year, the SBC must be provided as soon as practicable, but no later than seven business days after the issuance of the policy.

Grandfathered Plan Notice To maintain a plan’s grandfathered status, the plan sponsor or must include a statement of the plan’s grandfathered status in plan materials provided to participants describing the plan’s benefits (such as the summary plan description, insurance certificate and open enrollment materials). The DOL has provided a model notice for grandfathered plans. This notice only applies to plans that have grandfathered status under the ACA.
Notice of Patient Protections If a non-grandfathered plan requires participants to designate a participating primary care provider, the plan or issuer must provide a notice of patient protections whenever the SPD or similar description of benefits is provided to a participant. This notice is often included in the SPD or insurance certificate provided by the issuer (or otherwise provided with enrollment materials).

The DOL provided a model notice of patient protections for plans and issuers to use.

HIPAA Privacy Notice The HIPAA Privacy Rule requires self-insured health plans to maintain and provide their own privacy notices. Special rules, however, apply for fully insured plans. Under these rules, the health insurance issuer, and not the health plan itself, is primarily responsible for the privacy notice.

Self-insured health plans are required to send the privacy notice at certain times, including to new enrollees at the time of enrollment. Thus, the privacy notice should be provided with the plan’s open enrollment materials. Also, at least once every three years, health plans must either redistribute the privacy notice or notify participants that the privacy notice is available and explain how to obtain a copy.

The Department of Health and Human Services (HHS) has model Privacy Notices for health plans to choose from.

HIPAA Special Enrollment Notice At or prior to the time of enrollment, a group health plan must provide each eligible employee with a notice of his or her special enrollment rights under HIPAA. This notice should be included with the plan’s enrollment materials. It is often included in the health plan’s SPD or insurance booklet. Model language is available in the DOL’s compliance assistance guide.
Wellness Notice HIPAA Employers with health-contingent wellness programs must provide a notice that informs employees that there is an alternative way to qualify for the program’s reward. This notice must be included in all plan materials that describe the terms of the wellness program. If wellness program materials are being distributed at open enrollment (or renewal time), this notice should be included with those materials. Sample language is available in the DOL’s compliance assistance guide.
Wellness Notice ADA To comply with the Americans with Disabilities Act (ADA), wellness plans that collect health information or involve medical exams must provide a notice to employees that explains how the information will be used, collected and kept confidential. Employees must receive this notice before providing any health information and with enough time to decide whether to participate in the program. Employers that are implementing a wellness program for the upcoming plan year should include this notice in their open enrollment materials. The Equal Employment Opportunity Commission has provided a sample notice for employers to use.

Resources: https://www.ada.gov/; https://www.dol.gov/; https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/model-notices-privacy-practices/index.html; https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/Model-Notice-Letters.html; https://www.irs.gov/retirement-plans/retirement-plan-participant-notices-when-the-end-of-the-plan-year-has-passed; https://www.cms.gov/cciio/programs-and-initiatives/health-insurance-market-reforms/medical-loss-ratio.html; https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/compliance-assistance-guide.pdf; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/preexisting-condition-exclusions; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/summary-of-benefits; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/chipra/working-group; https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/whcra; https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/reporting-and-filing/forms; https://www.irs.gov/newsroom/patient-centered-outcomes-research-institute-fee; https://www.irs.gov/affordable-care-act/individuals-and-families/form-1095-b-what-you-need-to-do-with-this-form; https://www.irs.gov/affordable-care-act/individuals-and-families/form-1095-c-what-you-need-to-do-with-this-form; https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/index.html?redirect=/CreditableCoverage/; https://www.irs.gov/affordable-care-act/questions-and-answers-on-information-reporting-by-health-coverage-providers-section-6055; https://www.irs.gov/affordable-care-act/employers/questions-and-answers-on-reporting-of-offers-of-health-insurance-coverage-by-employers-section-6056; https://www.irs.gov/forms-pubs/about-form-w-2;


The approaching ACA premium tax moratorium – take 2

In 2010, Congress scheduled the 2014 Affordable Care Act premium tax. Then in 2015 Congress introduced a one-year moratorium on the premium tax that would take place in 2017. This past January, Congress placed another moratorium for the ACA premium tax in 2019. Continue reading to learn more.


In 2010, Congress scheduled the 2014 introduction of the Affordable Care Act premium tax (aka the health insurer fee). Then, via the PACE Act of October 2015, Congress placed a one-year moratorium on this 4% or so premium tax for calendar year 2017. You might recall our ensuing discussion a couple of years ago about how employers sponsoring fully insured medical, dental and/or vision plans could leverage this 2017 moratorium to their advantage.

See also: ACA: 4 things employers should focus on this fall

Meanwhile, did you notice back in January that Congress placed another moratorium on this tax, this time for 2019? To review:

  • 2014-2016 – Tax applies
  • 2017 – Under moratorium
  • 2018 – Tax applies
  • 2019 – Under moratorium
  • 2020 – Tax scheduled to return

Fortunately, in moratorium years, fully insured medical, dental and vision premiums should be about 4% lower than they would have been otherwise, with these savings passed along proportionately by most employers to their plan participants.

Unfortunately, the budgetary challenge of this on-again-off-again Congressional approach is that when the tax returns, fully insured renewals naturally go up about 4% more than they would have otherwise. For example, an 8% premium increase becomes 12%.

See also: Proposals for Insurance Options That Don’t Comply with ACA Rules: Trade-offs In Cost and Regulation

Another complication occurs as employers annually compare the expected and maximum costs of self-funding their plans versus fully insuring the plans. Because this tax generally does not apply to self-funded plans, in “tax applies” years, any expected savings from self-funding will show about 4% higher than in moratorium years. This math especially complicates the financial comparison of level funding contracts to fully insured contracts (almost all level funding products are self-funded contracts).

With the Jan. 1 fully insured medical, dental and vision renewals beginning to cross our desks, what should employers do?

First, they should review the renewal’s rating methodology page and ensure that this tax was not included in the proposed 2019 premiums. If the rating methodology page was not provided, request it. If this request fails, ask for written confirmation that this tax is not included in your plan’s 2019 premiums.

Second, when comparing 2019 expected and maximum mature self-funded plan costs to 2019 fully insured premiums, extend the analysis to 2020 and project what will happen when this 4% fully insured tax tide returns.

See also: Pre-existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA

Finally, complicating matters, several states, including Maryland, introduced new or higher state premium taxes for 2019. Ask your benefits consultant if these actions will impact your plans. For Maryland employers sponsoring fully insured plans, for example, the new additional one-year premium tax will essentially cancel out the 2019 ACA premium tax moratorium.

SOURCE: Pace, Z (27 September 2018) "The approaching ACA premium tax moratorium – take 2" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/the-approaching-obamacare-premium-tax-moratorium?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001


ACA: 4 things employers should focus on this fall

Yes, employers still need to worry about the Affordable Care Act and its many rules and regulations. Read this blog post for more information.


During the coming months, employers may have questions about whether they still need to worry about the Affordable Care Act (ACA). The answer is yes; the ACA is alive and well, despite renewed legal challenges and the elimination of the individual mandate beginning next year.

While the Tax Cuts and Jobs Act reduced the tax penalty for individuals who don’t have health coverage to $0, effective for 2019, employers are still subject to penalties for failing to comply with certain ACA rules. For example, the IRS is currently enforcing “employer shared responsibility payments” (ESRP) penalties against large employers who fail to meet the ACA requirements to offer qualifying health coverage to their full-time employees. For this purpose, large employers are those with 50 or more full-time or full-time equivalent employees. Here are four things about the ACA that employers should focus on now to avoid significant financial liabilities.

1. The IRS is currently assessing penalties using 226-J letters

In 2017, the IRS began assessing ESRP penalties against large employers that failed to offer qualifying health coverage to at least 95 percent of their full-time employees. An ESRP penalty assessment comes in the form of a 226-J letter, which explains that the employer may be liable for the penalty, based on information obtained by the IRS from Forms 1095-C filed by the employer for that coverage year, and tax returns filed by the employer’s employees. The employer has only 30 days to respond to the 226-J letter, using IRS Form 14764, which is enclosed with the 226-J letter. The employer must complete and return IRS Form 14765 to challenge any part of the assessment.

The short timeframe for responding to a 226-J letter means that staff who are likely to be the first to receive communications from the IRS should have a plan in place to react quickly. Training for staff should include information about who to notify and what documentation to keep readily available to support an appeal. Not responding to the IRS 226-J letter will result in a final assessment of the proposed penalty. These penalties can be significant. In the worst case, an employer with inadequate health coverage could pay for the cost of the coverage, as well as penalties of $2,000/year (as indexed) for every full time employee (less 30), even those who received health coverage from the employer.

Depending on the employer’s response to the initial assessment, the IRS will then send the employer one of four types of 227 acknowledgment letters. If the employer disputes the penalty, the IRS could accept the employer’s explanation and reduce the penalty to $0 (a 227-K letter). But if the IRS rejects any part of the employer’s response, the employer will receive either a 227-L letter, with a lower penalty amount, or a 227-M letter, a notice that the amount of the initial assessment hasn’t changed. These letters will explain steps the employer has to take to continue disputing the assessment, including applicable deadlines. The next phase of the appeal might include requesting a telephone conference or meeting with an IRS supervisor, or requesting a hearing with the IRS Office of Appeals.

2. ACA reporting requirements and penalties still apply

Along with the ESRP penalties, the Form 1094-C and 1095-C reporting requirements still apply to large employers. The IRS uses information on Forms 1095-C in applying the ESRP rules and deciding whether to assess penalties against the reporting employer. Large employers must file Forms 1095-C every year with the IRS and send them to full-time employees in order to document compliance with the ACA requirement to offer qualified, affordable coverage to at least 95 percent of full-time employees. Technically, the forms are due to employees by January 31, and to the IRS by March 31, each year, to report compliance for the prior year. In the past, the IRS has extended the deadline for providing the forms to employees, but not the deadline for filing with the IRS. 

Penalties can apply if an employer fails to file with the IRS or provide the forms to employees, and the penalty amount can be doubled if the IRS determines that the employer intentionally disregarded the filing requirement. These penalties can apply if an employer fails to file or provide the forms at all, files and provides the forms late, or if the forms are timely filed and provided, but are incorrect or incomplete.

In some instances, the IRS has assessed ESRP penalties based on Form 1095-C reporting errors. So, in addition to the reporting-related penalties, inaccurate information on Forms 1095-C can lead to erroneous ESRP assessments that the employer will then need to refute, using the IRS forms and procedures described above.

Employers should carefully monitor their ACA filings and reports, and consider correcting prior forms if errors are discovered. Employers should also continue tracking offers of coverage made for each month of 2018, to prepare for compliance with the Form 1095-C reporting requirement early in 2019.

3. “Summary of Benefits and Coverage” disclosure forms are still required

The ACA added a new disclosure requirement for group health plans, called a “Summary of Benefits and Coverage” or “SBC,” that’s intended to help employees make an “apples to apples” comparison of different benefit plan features, such as deductibles, out-of-pocket maximums, and copayments for various benefits and services. This requirement still applies, and SBCs must be provided during open enrollment, upon an employee’s initial eligibility for coverage under the plan, and in response to a request from an employee. The template SBC form and instructions for completing it were updated for coverage periods starting after April 1, 2017. For 2018, a penalty of $1,128 per participant can apply to the failure to provide an SBC as required. 

4. The “Cadillac Tax” has not been repealed

The ACA’s so-called Cadillac tax — an annual excise tax on high-cost health coverage — was initially scheduled to take effect in 2018. The Cadillac tax has been repeatedly delayed, and the federal budget bill passed in January delayed it again through December 31, 2021. Despite the repeated delays, the Cadillac tax has not been repealed and is currently scheduled to apply to health coverage offered on or after January 1, 2022. This might be an issue to consider for employers who are negotiating collective bargaining agreements in 2018 that include terms for health benefits extending beyond 2021. 

While uncertainty continues to surround the ACA, employers should remain aware of continuing compliance requirements to avoid the potentially significant penalties that remain in effect under the ACA. 

Boyette, J; Masson, L (21 August 2018) "ACA: 4 things employers should focus on this fall" (Web Blog Post). Retrieved from https://www.benefitspro.com/2018/08/21/aca-4-things-employers-should-focus-on-this-fall/


12 Ways to Save on Health Care

Managing your money is tough, saving for your health care is pretty rough too. These tips and tricks will assist you in managing your medical finances for the future.


We all know paying for health care is a challenge, with or without insurance, amid rising copays, deductibles, and premiums. But there are ways to hold down the costs that can come in handy now, but also as the Affordable Care Act undergoes whatever transformation (or replacement) the Trump administration comes up with.

The Huffington Post reports that, despite the numerous obstacles to cutting costs on health care for individuals —insured or not — there are also numerous ways to do just that, whether it takes due diligence on the patient’s part or having conversations with doctors, hospitals and insurers — even drug companies — about price.

While such tactics may not exactly amount to haggling, negotiating skills can’t hurt, and determination and perseverance are definite assets when it comes to finding the best prices or convincing medical entities to give you a better deal.

Plenty of other sources have good suggestions for slicing medical expenses, whether for prescription drugs, doctor and dentist visits, or hospital care. In fact,

Here’s a look at 12 strategies and suggestions that can end up saving you beaucoup bucks for care and treatment.

12. Check the internet

You would be amazed at how many tips there are online to help you cut the cost of getting — or staying — healthy.

One of the first things you should do is to check out the internet, where you’ll find not just help from the Huffington Post but also from such prominent sources as Kiplinger, Investopedia, Money, CBS and other news stations — and checking them out can have the advantage of providing you with any new suggestions arising out of changes in the law or in the medical field itself. And definitely compare prices on the Internet for procedures and prescriptions before you do anything else.

11. Skip insurance on your prescriptions

Not all the time, and not everywhere, but you could end up getting your prescriptions filled for less money if you don’t go through your medical insurance.

Costco, Walmart, and other retailers with pharmacies often offer cut-to-the-bone prices on generics, some prescription drugs and large orders (say, a 90-day supply of something you take over an extended period). Costco will even provide home delivery, and fill your pets’ prescriptions, too.

Then there are coupons. GoodRx will compare prices for you, provide free coupons you can print out and take to the pharmacy and save, as the website says, up to 80 percent — without charging a membership fee or requiring a sign-up.

10. Talk to your doctor

And ask for samples and coupons. Especially if you’ve never taken a particular drug before, let your doctor know you want to try out a sample lest you have an adverse reaction to the medication and get stuck with 99 percent of your prescription unusable.

Pharmaceutical reps, of course, provide doctors with samples, but they often give them coupons, too, lest you suffer sticker shock in the pharmacy and walk away without filling the prescription. So ask for those too. Doctors can be more proactive about samples than coupons, but remember to ask for both. After all, it’s your money.

9. Talk directly to the drug companies

So you’ve tried to get a brand-name drug cheaper, but coupons don’t help enough and there’s no generic available (or you react badly to it). Don’t stop there; go directly to the source and ask about assistance programs the pharmaceutical company may offer.

Such programs can be need-based, but not always — sometimes it’s a matter of filling out a little paperwork to get a better deal. The Huffington Post points out dialysis drug Renvela can go for several hundred dollars, but drops to $5 a month if the patient completes a simple form.

8. Haggle

Before you go in for a procedure (assuming it’s voluntary), or when the bills start to come in, talk to both the doctors (is there ever only one?) and the hospital and ask for a discount — or a reduction in your bill for paying in cash or for paying the whole amount. Be polite, but stand your ground and negotiate for all you’re worth.

A CBS report cites Consumer Reports as having found that only 31 percent of Americans haggle with doctors over medical bills but that 93 percent of those who did were successful — with more than a third of those saving more than $100. Just make sure you’re talking with the right person in the office — the one who actually has the authority to issue those discounts. And get it in writing.

7. What about an HMO?

If you’re not devoted to your doctor, opting for an HMO can save you money — although it will limit your choices of doctors and hospitals. Still, coverage should be cheaper.

If you’re generally in good health, choosing a plan — HMO or not — that restricts your choices of doctors and hospitals can save you money. And having the flexibility to go see the top specialist in his field won’t necessarily be your top priority unless you have specific health conditions for which you really need specialized care. In that case, you might prefer to hang on to your right of choice, despite the expense.

6. Ask for estimates

Yes, just the way you would from your mechanic or plumber. Ask the doctor/hospital/etc. what the charge is for whatever it is you’re having done, whether it’s a hip replacement or a deviated septum. You will already have checked out the costs for these things on the Internet, of course, so that you have an idea of standard pricing — and if your doctor, etc. comes in substantially higher, look elsewhere.

And while you’re at it, ask whether the doctor uses balance billing. If so, run, do not walk, in the opposite direction and find a doctor who doesn’t. Otherwise, particularly if the doctor’s fees are high, you’ll find yourself paying the balance of his whole bill once the insurance company kicks in its share.

Normally the doctor and insurer reach an agreement that eliminates whatever is left over after you pay your share and the insurer pays its share. But with balance billing, whatever is left over becomes your responsibility — and you’ll be sorry, maybe even bankrupt. By the way, balance billing is actually illegal in some states under some circumstances, so check before you pay.

5. Network, network, network

Always, always ask if the doctor is in network, and if the lab where your blood work goes and the specialist he recommends and the emergency room doctor and surgeon are also in network. Of course you can’t do this if it’s a true emergency, but if you learn after the fact that you were treated by out-of-network doctors at an in-network hospital, see whether your state has any laws against, or limits on, how much those out-of-network practitioners can charge you.

According to a Kaiser Family Foundation study, close to 70 percent of with unaffordable out-of-network medical bills were not aware that the practitioner treating them was not in their plan’s network at the time they received care.

4. Check your bill with a fine-toothed comb

Not only should you check to see whether your bill is accurate, you should also read up on medical terminology so you know whether you’re being billed for medications and procedures you actually received.

Not only do billing offices often mess up — a NerdWallet study found that 49 percent of Medicare medical claims contain medical billing errors, which results in a 26.4 percent overpayment for the care provided, but they can also get a little creative, such as billing for individual parts of a course of treatment that ought to be billed as a single charge. It adds up. And then there are coding errors, which can misclassify one treatment as another and up the charge by thousands of dollars.

3. Get a health care advocate

If you just can’t face fighting insurers or doctors’ offices, or aren’t well enough to fight your own battles, consider calling in a local professional health care advocate. They’ll know what’s correct, be able to spot errors, and can negotiate on your behalf to contest charges or lower bills.

For that matter, if you call them in ahead of time for a planned procedure or course of treatment, they can advise you about care options in your area and maybe forestall a lot of problems.

2. Go for free, not broke

Lots of places offer free flu shots and screenings for things like blood pressure and cholesterol levels — everyplace from drugstores to shopping centers, and maybe even your place of work.

Senior centers do too, but if you can’t find anything locally check out places like Costco and Sam’s Club, which do screenings for $15; that might even be cheaper than your copay at the doctor’s office.

1. Deals can make you smile

Whether you have dental insurance or not, it doesn’t cover much. So go back to #8 (Haggle) to negotiate cash prices with your dentist for major procedures, and take advantage of Living Social or Groupon vouchers to get your routine cleanings and exams with X-rays. The prices, says HuffPost, “range from $19 to $50 and are generally offered by dentists hoping to grow their practices.”

SOURCE:
Satter, M (2 June 2018) "12 ways to save on health care" [Web Blog Post]. Retrieved from https://www.benefitspro.com/2017/02/07/12-ways-to-save-on-health-care?t=Consumer-Driven&page=6


Pre-existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA

Data provided through two, large government surveys, The National Health Interview Survey (NHIS) and the Behavioral Risk Factor Surveillance System (BRFSS), Kaiser Family Foundation addresses the risk factors involved in repealing and repealing ACA.


Before private insurance market rules in the Affordable Care Act (ACA) took effect in 2014, health insurance sold in the individual market in most states was medically underwritten.1  That means insurers evaluated the health status, health history, and other risk factors of applicants to determine whether and under what terms to issue coverage. To what extent people with pre-existing health conditions are protected is likely to be a central issue in the debate over repealing and replacing the ACA. This brief reviews medical underwriting practices by private insurers in the individual health insurance market prior to 2014, and estimates how many American adults could face difficulty obtaining private individual market insurance if the ACA were repealed or amended and such practices resumed.  We examine data from two large government surveys: The National Health Interview Survey (NHIS) and the Behavioral Risk Factor Surveillance System (BRFSS), both of which can be used to estimate rates of various health conditions (NHIS at the national level and BRFSS at the state level). We consulted field underwriting manuals used in the individual market prior to passage of the ACA as a reference for commonly declinable conditions.

Estimates of the Share of Adults with Pre-Existing Conditions

We estimate that 27% of adult Americans under the age of 65 have health conditions that would likely leave them uninsurable if they applied for individual market coverage under pre-ACA underwriting practices that existed in nearly all states. While a large share of this group has coverage through an employer or public coverage where they do not face medical underwriting, these estimates quantify how many people could be ineligible for individual market insurance under pre-ACA practices if they were to ever lose this coverage. This is a conservative estimate as these surveys do not include sufficient detail on several conditions that would have been declinable before the ACA (such as HIV/AIDS, or hepatitis C).  Additionally, millions more have other conditions that could be either declinable by some insurers based on their pre-ACA underwriting guidelines or grounds for higher premiums, exclusions, or limitations under pre-ACA underwriting practices. In a separate Kaiser Family Foundation poll, most people (53%) report that they or someone in their household has a pre-existing condition. A larger share of nonelderly women (30%) than men (24%) have declinable preexisting conditions. We estimate that 22.8 million nonelderly men have a preexisting condition that would have left them uninsurable in the individual market pre-ACA, compared to 29.4 million women. Pregnancy explains part, but not all of the difference. The rates of declinable pre-existing conditions vary from state to state. On the low end, in Colorado and Minnesota, at least 22% of non-elderly adults have conditions that would likely be declinable if they were to seek coverage in the individual market under pre-ACA underwriting practices.  Rates are higher in other states – particularly in the South – such as Tennessee (32%), Arkansas (32%), Alabama (33%), Kentucky (33%), Mississippi (34%), and West Virginia (36%), where at least a third of the non-elderly population would have declinable conditions.

Table 1: Estimated Number and Percent of Non-Elderly People with Declinable Pre-existing Conditions Under Pre-ACA Practices, 2015
State Percent of Non-Elderly Population  Number of Non-Elderly Adults
Alabama 33%                   942,000
Alaska 23%                   107,000
Arizona 26%                1,043,000
Arkansas 32%                   556,000
California 24%                5,865,000
Colorado 22%                   753,000
Connecticut 24%                   522,000
Delaware 29%                   163,000
District of Columbia 23%                   106,000
Florida 26%                3,116,000
Georgia 29%                1,791,000
Hawaii 24%                   209,000
Idaho 25%                   238,000
Illinois 26%                2,038,000
Indiana 30%                1,175,000
Iowa 24%                   448,000
Kansas 30%                   504,000
Kentucky 33%                   881,000
Louisiana 30%                   849,000
Maine 29%                   229,000
Maryland 26%                   975,000
Massachusetts 24%                   999,000
Michigan 28%                1,687,000
Minnesota 22%                   744,000
Mississippi 34%                   595,000
Missouri 30%                1,090,000
Montana 25%                   152,000
Nebraska 25%                   275,000
Nevada 25%                   439,000
New Hampshire 24%                   201,000
New Jersey 23%                1,234,000
New Mexico 27%                   332,000
New York 25%                3,031,000
North Carolina 27%                1,658,000
North Dakota 24%                   111,000
Ohio 28%                1,919,000
Oklahoma 31%                   706,000
Oregon 27%                   654,000
Pennsylvania 27%                2,045,000
Rhode Island 25%                   164,000
South Carolina 28%                   822,000
South Dakota 25%                   126,000
Tennessee 32%                1,265,000
Texas 27%                4,536,000
Utah 23%                   391,000
Vermont 25%                     96,000
Virginia 26%                1,344,000
Washington 25%                1,095,000
West Virginia 36%                   392,000
Wisconsin 25%                   852,000
Wyoming 27%                     94,000
US 27%              52,240,000
SOURCE: Kaiser Family Foundation analysis of data from National Health Interview Survey and the Behavioral Risk Factor Surveillance System. NOTE: Five states (MA, ME, NJ, NY, VT) had broadly applicable guaranteed access to insurance before the ACA. What protections might exist in these or other states under a repeal and replace scenario is unclear.

At any given time, the vast majority of these approximately 52 million people with declinable pre-existing conditions have coverage through an employer or through public programs like Medicaid. The individual market is where people seek health insurance during times in their lives when they lack eligibility for job-based coverage or for public programs such as Medicare and Medicaid.  In 2015, about 8% of the non-elderly population had individual market insurance.  Over a several-year period, however, a much larger share may seek individual market coverage.2  This market is characterized by churn, as new enrollees join and others leave (often for other forms of coverage). For many people, the need for individual market coverage is intermittent, for example, following a 26th birthday, job loss, or divorce that ends eligibility for group plan coverage, until they again become eligible for group or public coverage.  For others – the self-employed, early retirees, and lower-wage workers in jobs that typically don’t come with health benefits – the need for individual market coverage is ongoing.  (Figure 1 shows the distribution of employment status among current individual market enrollees.) Prior to the ACA’s coverage expansions, we estimated that 18% of individual market applications were denied. This is an underestimate of the impact of medical underwriting because many people with health conditions did not apply because they knew or were informed by an agent that they would not be accepted.  Denial rates ranged from 0% in a handful of states with guaranteed issue to 33% in Kentucky, North Carolina, and Ohio. According to 2008 data from America’s Health Insurance Plans, denial rates ranged from about 5% for children to 29% for adults age 60-64 (again, not accounting for those who did not apply).

Figure 1: Employment Status of Non-Group Enrollees, 2016

Figure 1: Employment Status of Non-Group Enrollees, 2016

Medical Underwriting in the Individual Market Pre-ACA

Prior to 2014 medical underwriting was permitted in the individual insurance market in 45 states and DC.  Applications for individual market policies typically included lengthy questionnaires about the health and risk status of the applicant and all family members to be covered.  Typically, applicants were asked to disclose whether they were pregnant or contemplating pregnancy or adoption, and information about all physician visits, prescription medications, lab results, and other medical care received in the past year.  In addition, applications asked about personal history of a series of health conditions, ranging from HIV, cancer, and heart disease to hemorrhoids, ear infections and tonsillitis.  Finally, all applications included authorization for the insurer to obtain and review all medical records, pharmacy database information, and related information. Once the completed application was submitted, the medical underwriting process varied somewhat across insurers, but usually involved identification of declinable medical conditions and evaluation of other conditions or risk factors that warranted other adverse underwriting actions. Once enrolled, a person’s health and risk status was sometimes reconsidered in a process called post-claims underwriting. Although our analysis focuses on declinable medication conditions, each of these other actions is described in more detail below.

Declinable Medical Conditions

Before the ACA, individual market insurers in all but five states maintained lists of so-called declinable medical conditions.  People with a current or past diagnosis of one or more listed conditions were automatically denied.  Insurer lists varied somewhat from company to company, though with substantial overlap.  Some of the commonly listed conditions are shown in Table 2.

Table 2: Examples of Declinable Conditions In the Medically Underwritten Individual Market, Before the Affordable Care Act
Condition Condition
AIDS/HIV Lupus
Alcohol abuse/ Drug abuse with recent treatment Mental disorders (severe, e.g. bipolar, eating disorder)
Alzheimer’s/dementia Multiple sclerosis
Arthritis (rheumatoid), fibromyalgia, other inflammatory joint disease Muscular dystrophy
Cancer within some period of time (e.g. 10 years, often other than basal skin cancer) Obesity, severe
Cerebral palsy Organ transplant
Congestive heart failure Paraplegia
Coronary artery/heart disease, bypass surgery Paralysis
Crohn’s disease/ ulcerative colitis Parkinson’s disease
Chronic obstructive pulmonary disease (COPD)/emphysema Pending surgery or hospitalization
Diabetes mellitus Pneumocystic pneumonia
Epilepsy Pregnancy or expectant parent
Hemophilia Sleep apnea
Hepatitis (Hep C) Stroke
Kidney disease, renal failure Transsexualism
SOURCE: Kaiser Family Foundation review of field underwriting guidelines from Aetna (GA, PA, and TX), Anthem BCBS (IN, KY, and OH), Assurant, CIGNA, Coventry, Dean Health, Golden Rule, Health Care Services Corporation (BCBS in IL, TX) HealthNet, Humana, United HealthCare, Wisconsin Physician Service.  Conditions in this table appeared on declinable conditions list in half or more of guides reviewed.  NOTE: Many additional, less-common disorders also appearing on most of the declinable conditions lists were omitted from this table.

Our analysis of rates of pre-existing conditions in this brief focuses on those conditions that would likely be declinable, based on our review of pre-ACA underwriting documents. Our analysis is limited – and our results are conservative – because NHIS and BRFSS questionnaires do not address some of the conditions that were declinable, and in some cases the questions that do relate to declinable conditions were too broad for inclusion. See the methodology section for a list of conditions included in the analysis. In addition to declinable conditions, many insurers also maintained a list of declinable medications.  Current use of any of these medications by an applicant would warrant denial of coverage.  Table 3 provides an example of medications that were declinable in one insurer prior to the ACA. Our analysis does not attempt to account for use of declinable medications.

Table 3: Declinable Medications
 Anti-Arthritic Medications

  • Adalimumab/Humira
  • Cyclosporine/Sandimmune
  •  Methotrexate/Trexall
  • Ustekinumab/Stelara
  • others
 Anti-Diabetic Medications

  • Avandia/Rosiglitazone
  • Glucagon
  • Humalog/Insulin products
  • Metformin HCL
  • others
Medications for HIV/AIDS or Hepatitis

  • Abacavir/Ziagen
  • Efavirenz/Atripla
  • Interferon
  • Lamivudine/Epivir
  • Ribavirin
  • Zidovudine/Retrovir
  • others

 

Anti-Cancer Medications

  • Anastrozole/Arimidex
  • Nolvadex/Tamoxifen
  • Femara
  • others
Anti-Psychotics, Autism, Other Central Nervous System Medications

  • Abilify/Ariprazole
  • Aricept/Donepezil
  • Clozapine/Clozaril
  • Haldol/Haldoperidol
  • Lithium
  • Requip/Ropinerole
  • Risperdal/Risperidone
  • Zyprexa
  •  others
Anti-Coagulant/Anti-Thrombotic Medications

  • Clopidogrel/Plavix
  • Coumadin/Warfarin
  • Heparin
  • others
Miscellaneous Medications

  • Anginine (angina)
  • Clomid (fertility)
  • Epoetin/Epogen (anemia)
  • Genotropin (growth hormone)
  • Remicade (arthritis, ulcerative colitis)
  • Xyrem (narcolepsy)
  • others
SOURCE:  Blue Cross Blue Shield of Illinois, Product Guide for Agents

Some individual market insurers also developed lists of ineligible occupations.  These were jobs considered sufficiently high risk that people so employed would be automatically denied.  In addition, some would automatically deny applicants who engaged in certain leisure activities and sports.  Table 4 provides an example of declinable occupations from one insurer prior to the ACA.  Our analysis does not attempt to account for declinable occupations.

Table 4: Ineligible Occupations, Activities
Active military personnel Iron workers Professional athletes
Air traffic controller Law enforcement/detectives Sawmill operators
Aviation and air transportation Loggers Scuba divers
Blasters or explosive handlers Meat packers/processors Security guards
Bodyguards Mining Steel metal workers
Crop dusters Nuclear industry workers Steeplejacks
Firefighters/EMTs Offshore drillers/workers Strong man competitors
Hang gliding Oil and gas exploration and drilling Taxi cab drivers
Hazardous material handlers Pilots Window washers
SOURCE: Preferred One Insurance Company Individual and Family Insurance Application Form

Other Adverse Underwriting Actions

Beyond the declinable conditions, medications and occupations, underwriters also examined individual applications and medical records for other conditions that could generate significant “losses” (claims expenses.)  Among such conditions were acne, allergies, anxiety, asthma, basal cell skin cancer, depression, ear infections, fractures, high cholesterol, hypertension, incontinence, joint injuries, kidney stones, menstrual irregularities, migraine headaches, overweight, restless leg syndrome, tonsillitis, urinary tract infections, varicose veins, and vertigo. One or more adverse medical underwriting actions could result for applicants with such conditions, including:

  • Rate-up – The applicant might be offered a policy with a surcharged premium (e.g. 150 percent of the standard rate premium that would be offered to someone in perfect health)
  • Exclusion rider – Coverage for treatment of the specified condition might be excluded under the policy; alternatively, the body part or system affected by the specified condition could be excluded under the policy. Exclusion riders might be temporary (for a period of years) or permanent
  • Increased deductible – The applicant might be offered a policy with a higher deductible than the one originally sought; the higher deductible might apply to all covered benefits or a condition-specific deductible might be applied
  • Modified benefits – The applicant might be offered a policy with certain benefits limited or excluded, for example, a policy that does not include prescription drug coverage.

In some cases, individuals with these conditions might also be declined depending on their health history and the insurer’s general underwriting approach.  For example, field underwriting guides indicated different underwriting approaches for an applicant whose child had chronic ear infections:

  • One large, national insurer would issue standard coverage if the child had fewer than five infections in the past year or ear tubes, but apply a 50% rate up if there had been more than 4 infections in the prior year;
  • Another insurer, which used a 12-tier rate system, would issue coverage at the second most favorable rate tier if the child had just one infection in the prior year or ear tubes, at the fifth rate tier if there had been 2-3 infections during the prior year, and at the seventh tier if there had been 4 or more infections; for some conditions, this company’s rating might depend on the plan deductible – applicants with history of ear infections would be offered the second rating tier for policies with a deductible of $5,000 or higher;
  • Another insurer would issue standard coverage if the child had just one infection in the prior year or if ear tubes had been inserted more than one-year prior, apply a rate up if there were two infections in the prior year, and decline the application if there were three or more infections;
  • Another insurer would issue standard coverage if the child had fewer than 3 infections in the past year, but issue coverage with a condition specific deductible of $5,000 if there had been 3 or more infections or if ear tubes had been inserted.

In a 2000 Kaiser Family Foundation study of medical underwriting practices, insurers were asked to underwrite hypothetical applicants with varying health conditions, from seasonal allergies to situational depression to HIV.  Results varied significantly for less serious conditions. For example, the applicant with seasonal allergies who made 60 applications for coverage was offered standard coverage 3 times, declined 5 times, offered policies with exclusion riders or other benefit limits 46 times (including 3 offers that excluded coverage for her upper respiratory system), and policies with premium rate ups (averaging 25%) 6 times.

Pre-existing Condition Exclusion Provisions

In addition to medical screening of applicants before coverage was issued, most individual market policies also included more general pre-existing condition exclusion provisions which limited the policy’s liability for claims (typically within the first year) related to medical conditions that could be determined to exist prior to the coverage taking effect.3

Example of pre-existing condition exclusion Jean, an Arizona teacher whose employer provided group health benefits but did not contribute to the cost for family members, gave birth to her daughter, Alex, in 2004 and soon after applied for an individual policy to cover the baby.  Due to time involved in the medical underwriting process, the baby was uninsured for about 2 weeks. A few months later, Jean noticed swelling around the baby’s face and eyes.  A specialist diagnosed Alex with a rare congenital disorder that prematurely fused the bones of her skull.  Surgery was needed immediately to avoid permanent brain damage.   When Jean sought prior-authorization for the $90,000 procedure, the insurer said it would not be covered.  Under Arizona law, any condition, including congenital conditions, that existed prior to the coverage effective date, could be considered a pre-existing condition under individual market policies.  Alex’s policy excluded coverage for pre-existing conditions for one year.  Jean appealed to the state insurance regulator who upheld the insurer’s exclusion as consistent with state law. Source:  Wall Street Journal, May 31, 2005

The nature of pre-existing condition exclusion clauses varied depending on state law.  In 19 states, a health condition could only be considered pre-existing if the individual had actually received treatment or medical advice for the condition during a “lookback” period prior to the coverage effective date (from 6 months to 5 years).  In most states, a pre-existing condition could also include one that had not been diagnosed but that produced signs or symptoms that would prompt an “ordinarily prudent person” to seek medical advice, diagnosis or treatment.  In 8 states and DC, conditions that existed prior to the coverage effective date – including those that were undiagnosed and asymptomatic – could be considered pre-existing and so excluded from coverage under an individual market policy.  For example, a congenital condition in a newborn could be considered pre-existing to the coverage effective date (the baby’s birth date) and excluded from coverage.  About half of the states required individual market insurers to reduce pre-existing condition exclusion periods by the number of months of an enrollee’s prior coverage.

Example of policy rescission Jennifer, a Colorado preschool teacher, was seriously injured in 2005 when her car was hit by a drug dealer fleeing the police. She required months of inpatient hospitalization and rehab, and her bills reached $185,000.   Jennifer was covered by a non-group policy which she had purchased five months prior to the accident.   Shortly after her claims were submitted, the insurer re-reviewed Jennifer’s application and medical history.  Following its investigation, the insurer notified Jennifer they found records of medical care she had not disclosed in her application, including medical advice sought for discomfort from a prolapsed uterus and an ER visit for shortness of breath.  The insurer rescinded the policy citing Jennifer’s failure to disclose this history. Jennifer sued the insurer for bad faith; four years later a jury ordered the insurer to reinstate the policy and pay $37 million in damages. Source:  Westword, February 11, 2010.

Unlike exclusion riders that limited coverage for a specified condition of a specific enrollee, pre-existing condition clauses were general in nature and could affect coverage for any applicable condition of any enrollee.  Pre-existing condition exclusions were typically invoked following a process called post-claims underwriting.  If a policyholder would submit a claim for an expensive service or condition during the first year of coverage, the individual market insurer would conduct an investigation to determine whether the condition could be classified as pre-existing. In some cases, post-claims underwriting might also result in coverage being cancelled.  The investigations would also examine patient records for evidence that a pre-existing condition was known to the patient and should have been disclosed on the application.  In such cases, instead of invoking the pre-existing condition clause, an issuer might act to rescind the policy, arguing it would have not issued coverage in the first place had the pre-existing condition been disclosed.

Discussion

The Affordable Care Act guarantees access to health insurance in the individual market and ends other underwriting practices that left many people with pre-existing conditions uninsured or with limited coverage before the law. As discussions get underway to repeal and replace the ACA, this analysis quantifies the number of adults who would be at risk of being denied if they were to seek coverage in the individual market under pre-ACA rules. What types of protections are preserved for people with pre-existing conditions will be a key element in the debate over repealing and replacing the ACA. We estimate that at least 52 million non-elderly adult Americans (27% of those under the age of 65) have a health condition that would leave them uninsurable under medical underwriting practices used in the vast majority of state individual markets prior to the ACA. Results vary from state-to-state, with rates ranging around 22 – 23% in some Northern and Western states to 33% or more in some southern states. Our estimates are conservative and do not account for a number of conditions that were often declinable (but for which data are not available), nor do our estimates account for declinable medications, declinable occupations, and conditions that could lead to other adverse underwriting practices (such as higher premiums or exclusions). While most people with pre-existing conditions have employer or public coverage at any given time, many people seek individual market coverage at some point in their lives, such as when they are between jobs, retired, or self-employed. There is bipartisan desire to protect people with pre-existing conditions, but the details of replacement plans have yet to be ironed out, and those details will shape how accessible insurance is for people when they have health conditions.

Gary Claxton, Cynthia Cox, Larry Levitt, and Karen Pollitz are with the Kaiser Family Foundation. Anthony Damico is an independent consultant to the Kaiser Family Foundation.

Methods

To calculate nationwide prevalence rates of declinable health conditions, we reviewed the survey responses of nonelderly adults for all question items shown in Methods Table 1 using the CDC’s 2015 National Health Interview Survey (NHIS).  Approximately 27% of 18-64 year olds, or 52 million nonelderly adults, reported having at least one of these declinable conditions in response to the 2015 survey.  The CDC’s National Center for Health Statistics (NCHS) relies on the medical condition modules of the annual NHIS for many of its core publications on the topic; therefore, we consider this survey to be the most accurate means to estimate both the nationwide rate and weighted population. Since the NHIS does not include state identifiers nor sufficient sample size for most state-based estimates, we constructed a regression model for the CDC’s 2015 Behavioral Risk Factor Surveillance System (BRFSS) to estimate the prevalence of any of the declinable conditions shown in Methods Table 1 at the state level.  This model relied on three highly significant predictors: (a) respondent age; (b) self-reported fair or poor health status; (c) self-report of any of the overlapping variables shown in the left-hand column of Methods Table 1.  Across the two data sets, the prevalence rate calculated using the analogous questions (i.e. the left-hand column of Methods Table 1) lined up closely, with 20% of 18-64 year old survey respondents reporting at least one of those declinable conditions in the 2015 NHIS and 21% of 18-64 year olds in the 2015 BRFSS.  Applying this prediction model directly to the 2015 BRFSS microdata yielded a nationwide prevalence of any declinable condition of 28%, a near match to the NHIS nationwide estimate of 27%.

 

Methods Table 1: Declinable Medical Conditions Available in Survey Microdata
Declinable Condition Questions Available in both the 2015 National Health Interview Survey and also the 2015 Behavioral Risk Factor Surveillance System Declinable Condition Questions Available in only the 2015 National Health Interview Survey
Ever had CHD Melanoma Skin Cancer
Ever had Angina Any Other Heart Condition
Ever had Heart Attack Crohn’s Disease or Ulcerative Colitis
Ever had Stroke Epilepsy
Ever had COPD Difficulty Due to Mental Retardation
Ever had Emphysema Difficulty Due to Cerebral Palsy
Chronic Bronchitis in past 12 months Difficulty Due to Senility
Ever had Non-Skin Cancer Difficulty Due to Depression
Ever had Diabetes Difficulty Due to Endocrine Problem
Weak or Failing Kidneys Difficulty Due to Blood Forming Organ Problem
BMI > 40 Difficulty Due to Drug / Alcohol / Substance Abuse
Pregnant Difficulty Due to Schizophrenia, ADD, or Bipolar Disorder

In order to align BRFSS to NHIS overall statistics, we then applied a Generalized Regression Estimator (GREG) to scale down the BRFSS microdata’s prevalence rate and population estimate to the equivalent estimates from NHIS, 27% and 52 million.  Since the regression described in the previous paragraph already predicted the prevalence rate of declinable conditions in BRFSS by using survey variables shared across the two datasets, this secondary calibration solely served to produce a more conservative estimate of declinable conditions by calibrating BRFSS estimates to the NHIS.  After applying this calibration, we calculated state-specific prevalence rates and population estimates off of this post-stratified BRFSS sample. The programming code, written using the statistical computing package R v.3.3.2, is available upon request for people interested in replicating this approach for their own analysis.

This article was written by Gary Claxton, Cynthia Cox, Anthony Damico, Larry Levitt and Karen Pollitz on Kaiser Family Foundation. Published: Dec 12, 2016

Taking Action to Prevent the Harmful Impact of Short-Term Plans

This article explores the recently established rule on short-term limited duration plans - as proposed by HHS - which would not comply with consumer protections afforded under ACA.

The U.S. Department of Health and Human Services (HHS) has proposed a new rule, open for comment until April 23, 2018, that is dangerous to consumers and to health care marketplaces. This rule would expand the sale of “short-term limited duration plans” that do not have to comply with the consumer protections afforded under the Affordable Care Act (ACA) and often leave consumers uncovered for major medical expenses.

The short-term plan rule will harm consumers and health care markets

The proposed rule would alter the definition of short-term plans as a backdoor way of creating a new class of plans that do not have to comply with the ACA, extending the duration of short-term plans from policies that last for 3 months to policies that can last just short of one year. Under this rule, insurers may also be allowed to renew a short-term plan for an enrollee after that period is up.

Companies selling these plans can make large profits at consumers’ expense, and the plans do not have to cover pre-existing conditions, provide essential health benefits, include adequate provider networks, or comply with a host of other key protections, as we describe in Seven Reasons the Trump Administration's Short-Term Health Plans Are Harmful to Families. Moreover, if many young and healthy people are drawn into these plans, the plans will undermine the market for real coverage, driving up prices in the ACA-compliant marketplace.

Now is the time to take action to prevent short-term plans from harming consumers and insurance markets throughout the country. Here we outline how advocates, consumers, and states can take action to address this harmful rule.

Stakeholders can urge HHS to stop the spread of harmful short-term plans

It’s important that HHS hears from stakeholders all over the country about how short-term plans will leave those who enroll in them without adequate protection from the costs of care, and how those who seek to stay in the market for comprehensive coverage will experience spikes in premiums and jeopardized access to coverage if short-term plans are allowed to expand.

The short-term plan rule will also burden states and insurance companies that are interested in making comprehensive coverage affordable. Particularly if the rule allows the proliferation of short-term plans that last for up to 12 months to take effect after insurers have already planned their premium pricing for 2019, these plans will cause chaos for comprehensive insurance providers and states alike in maintaining a stable insurance market. These expanded short-term plans should not be put on the market at all, but at the very least HHS should delay implementation of the final rule to give states and insurers more time to plan for it to take effect.

Advocates, consumers, state officials, health care providers, and other stakeholders can all make a difference by commenting to HHS about these problems. Stakeholders can also make a difference by urging state policymakers and officials to comment on the rule as well. Comments should urge HHS to stop or at the very least delay implementation of the rule on short-term plans. Comments should be submitted here by 5 PM on Monday, April 23rd.

States can take direct action to protect against short-term plans

States can take direct action to protect consumers and insurance markets from the harm of short-term limited duration plans. States have broad authority to regulate short-term plans and can adopt new laws or issue new regulations or guidance that exceeds the standards in the proposed rule. Given other upcoming changes in 2019 that will also pose risks for the market, including the repeal of the individual mandate penalty, taking swift action is particularly important.

These strategies can provide protections for consumers and help limit market instability caused by the expansion of short-term plans.

States can prohibit short-term plans altogether. Massachusetts, New Jersey, and New York currently prohibit short-term plans, and California is pursuing a prohibition via SB910 (Hernandez).

States can require that short-term plans comply with all protections that health plans sold on the comprehensive individual market meet. For example, a few states prohibit short-term plans from refusing to sell to a consumer based on their health status— those plans cannot “underwrite,” or take people’s health status into consideration when people seek to buy them. States could protect consumers from the harm of short-term plans by applying the same requirements to them as apply to comprehensive insurance. These include requirements for external review, essential health benefits and state benefit mandates, network adequacy, medical loss ratios, and pre-existing condition protections, including a requirement that plans do not charge people rates based on their health status. States can also ensure companies that offer short-term plans have to pay any existing state-based assessments, such as insurer taxes. States could also consider assessing short-term plan insurers and using those funds for a reinsurance program for plans that meet ACA standards.

  • States can restrict the duration of short-term plans. For example, states can pass laws prohibiting short-term plans from lasting for longer than 3 months. This will ensure that these plans are used as they were intended- to fill short gaps in coverage- and not as a long-term solution to substitute for real coverage. Some states already limit the period for which a short-term plan can be sold to less than the nearly 12 months allowed in the proposed federal rule. For a good index of such state laws, see State Regulation of Coverage Options Outside of the Affordable Care Act: Limiting Risk to the Individual Market from the Georgetown Center on Health Insurance Reform.
  • States can prohibit short-term plans from renewing consumers’ policies beyond their allowed duration: To ensure that short-term plans are not treated as a replacement for comprehensive insurance, states can prohibit plans from renewing their contract with a consumer once the duration of the short-term plan is over. For example, a state could prohibit insurers from selling a short-term policy to anyone who has enrolled in one during the last 12 months.
  • States can require strong disclosure and marketing rules to ensure short-term plans are transparent about their shortfalls. States can require short-term plans to include prominent disclosures in marketing materials (including websites), application forms, and other forms to warn people about what the plans do not cover and how they may expose consumers to high out-of-pocket costs. For example, Colorado requires short-term plans to provide such a disclosure to warn people about the lack of coverage for pre-existing conditions in short-term plans. Additionally, states can require short-term plans to supply simple, clear, and comparable information about what benefits they do and do not cover, and corresponding cost-sharing requirements. Comprehensive plans must comply with requirements to produce a summary of benefits and coverage, and states could apply such requirements to short-term plans as well.

There are additional protections that states may want to consider to protect people from the harms of short-term plans. For additional discussion of how states can take action, see State Options to Protect Consumers and Stabilize the Market: Responding to President Trump’s Executive Order on Short-Term Health Plans by the Georgetown Center on Health Insurance reform.

State legislators and insurance departments can lead the efforts to enact these important protections. And, they along with any health care ombudsman programs or other organizations that assist health insurance consumers in the state may know of complaints and problems regarding short-term plans that can inform what protections the state should enact. State attorneys general, Better Business Bureaus, or other consumer protection agencies may also be aware of problems and can be helpful allies in efforts to prevent short-term plans from harming consumers and insurance markets alike.

Additionally, the National Association of Insurance Commissioners (NAIC) is currently updating its model law for states on Accident and Sickness Insurance Minimum Standards (Model #170) and its companion regulation, the Model Regulation to Implement the Accident and Sickness Insurance Minimum Standards Model Act (Model #171). NAIC consumer representatives including Families USA are advocating to make these models as robust possible in their protection of consumers and the market from the damage of short-term plans. (See the March 2018 report by the NAIC consumer representatives and former Montana regulator Christina Goe, Non-ACA-Compliant Plans and the Risk of Market Segmentation.)

This article was brought to you by Families USA by Claire McAndrew on April 2018.


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