Health Care Nondiscrimination Notice Requirement Is Going Away

The Department of Health and Human Services' has removed requirements that employers issue non-discrimination statements to employees that will go into effect on August 18, 2020. Read this blog post to learn more.


On Aug. 18, 2020, the Department of Health and Human Services' (HHS's) finalized changes to the Affordable Care Act's Section 1557 nondiscrimination rules will take effect, removing requirements that employers issue health care nondiscrimination statements to employees and add health care nondiscrimination taglines to employee communications.

Prior to the changes under a final rule HHS published on June 19, employers had to ensure that they, along with their insurers (for fully insured plans) or third-party administrators (for self-insured plans), abided by a 2016 HHS rule requiring employer-sponsored plans to:

  • Create and maintain a notice of health care nondiscrimination.
  • Include it in "significant communications" along with taglines in 15 different languages advising individuals of the availability of language assistance.
  • Include similar taglines for other communications but only in three different languages.

These notices are still required until Aug. 18.

"Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their health care," said Roger Severino, director of the Office for Civil Rights at HHS.

Less Paperwork and Lower Costs

"The final rule eliminated the requirement to post the discrimination notice and add taglines," said John Kirk, an attorney at law firm Graydon in Cincinnati. "The final rule also eliminated the requirement that the discrimination notice and taglines be included with all significant publications sent by the organization. This change will be a significant cost and administrative timesaver for most entities."

Employers offering employee benefit plans that were subject to the prior 2016 rule "should review any notice and disclosure obligations and may begin revising their disclosures to remove the nondiscrimination statement and required taglines," Kirk advised.

"This is welcome news for employers that were required to create and maintain these complicated notices," according to compliance firm HUB International. "In the preamble to the new final rules, HHS stated that the notices were costing employers and other entities hundreds of millions to billions of dollars, but were not, in HHS's view, providing meaningful additional help to individuals."

HUB noted that "the onerous notice requirement is gone, but nondiscrimination rules still generally apply," prohibiting discrimination in health care on the basis of race, color, national origin, sex, age or disability.

Overshadowed by Transgender Controversy

Most coverage of the HHS final rule focused on its controversial rollback of anti-discrimination protections based on gender identity, which overshadowed the rule's repeal of the notice and tagline provisions under the 2016 regulation.

A coalition of LGBTQ groups and health care providers are suing the Trump administration, alleging the new HHS rule conflicts with the Supreme Court's June 15 decision in Bostock v. Clayton County, Ga., which found that the prohibition against sex discrimination in the workplace under Title VII of the Civil Rights Act covers sexual orientation and gender identity.

SOURCE: Miller, S. (16 July 2020) "Health Care Nondiscrimination Notice Requirement Is Going Away" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/health-care-nondiscrimination-notice-requirement-is-going-away.aspx


2019: A Look Forward

A number of significant changes to group health plans have been made since the Affordable Care Act (ACA) was enacted in 2010. Many of these changes became effective in 2014 and 2015 but certain changes to a few ACA requirements take effect in 2019.

 Changes for 2019 

  1. Cost-sharing Limits – Non-grandfathered plans are subject to limitations on cost sharing for essential health benefits (EHB). The annual limits on cost sharing for EHB are $7,900 for self-only coverage and $15,800 for family coverage, effective January 1, 2019.
    • Health plans with more than one service provider can divide maximums between EBH as long as the combined amount does not exceed the out-of-pocket maximum limit for the year.
    • Beginning in 2016, each individual – regardless of the coverage the individual is enrolled – is subject to the self-only annual limit on cost sharing.
    • The ACA’s annual cost-sharing limits are higher than high deductible health plans (HDHPs) out-of-pocket maximums. For plans to qualify as an HDHP, the plan must comply with HDHP’s lower out-of-pocket maximums. The HDHP out-of-pocket maximum for 2019 is $6,750 for self-only coverage and $13,500 for family coverage.
  2. Coverage Affordability Percentages – If an employee’s required contribution does not exceed 9.5 percent of their household income for the taxable year (adjusted each year), then the coverage is considered affordable. The adjusted percentage for 2019 is 9.86 percent.
  3. Reporting of Coverage – Returns for health plan coverage offered or provided in 2018 are due in early 2019. For 2018, returns must be filed by February 28, 2019, or April 1, 2019 (if electronically filed). Individual statements must be provided by January 31, 2019.
    • ALEs are required to report information to the IRS and their eligible employees regarding their employer-sponsored health coverage. This requirement is found in Section 6056. Reporting entities will generally file Forms 1094-B and 1095-B under this section.
    • Every health insurance issuer, self-insured health plan sponsor, government agency that provides government-sponsored health insurance, and any other entity that provides MEC is required to finalize an annual return with the IRS, reporting information for each individual who is enrolled. This requirement is found in Section 6055. Reporting entities will generally file Forms 1094-C and 1095-C under this section.
    • ALEs that provide self-funded plans must comply with both reporting requirements. Reporting entities will file using a combined reporting method on Forms 1094-C and 1095-C.
    • Forms Used for Reporting – Reporting entities must file the following with the IRS:
      1. A separate statement for each individual enrolled
      2. A transmittal form for all returns filed for a given calendar year.
    • Electronic Reporting – Any reporting entity that is required to file 250 or more returns in either section must file electronically on the ACA Information Returns (AIR) Program. Reporting entities that file less than 250 returns can file in paper form or electronically on the ACA Information Returns (AIR) Program.
    • Penalties – Entities that fail to comply with the reporting requirements are subject to general reporting penalties for failure to file correct information returns and failure to furnish correct payee statements. Penalty amounts for failure to comply with the reporting requirements in 2019 are listed below:
Penalty Type Per Violation Annual Maximum Annual Maximum for Employers with up to $5 million in Gross Receipts
General $270 $3,275,500 $1,091,500
Corrected within 30 days $50 $545,500 $191,000
Corrected after 30 days but before August 1 $100 $1,637,500 $545,500
Intentional Disregard $540* None N/A

**Intentional disregard penalties are equal to the greater of either the listed penalty amount or 10 percent of the aggregate amount of the items required to be reported correctly.

Expected Changes

  1. Health FSA Contributions – Effective January 1, 2018, health FSA salary contributions were limited to $2,650. The IRS usually announces limit adjustments at the end of each year. This limit does not apply to employer contributions or limit contributions under other employer-provided coverage.
  2. Employer Shared Responsibility Regulations – The dollar amount for calculating Employer Shared Responsibility 2 penalties is adjusted for each calendar year. Applicable large employers (ALEs) must offer affordable, minimum value (MV) healthcare coverage to full-time employees and dependent children or pay a penalty. If one or more full-time employees of an ALE receive a subsidy for purchasing healthcare coverage through an Exchange, the ALE is subject to penalties.
    • Applicable Large Employer Status – ALEs are employers who employ 50 or more full-time employees on business days during the prior calendar year.
    • Offering Coverage to Full-time Employees – ALEs must determine which employees are full-time. A full-time employee is defined as an employee who worked, on average, at least 30 hours per week or 130 hours in a calendar month. There are two methods for determining full-time employee status:
      1. Monthly Measurement Method – Full-time employees are identified based on a month-to-month analysis of the hours they worked.
      2. Look-Back Measurement Method – This method is based on whether employees are ongoing or new, and whether they work full time or variable, seasonal or part-time. This method involves three different periods:
        • Measurement period – for county hours of service
        • Administration period – for enrollment and disenrollment of eligible and ineligible employees
        • Stability period – when coverage is provided based on an employee’s average hours worked.
      3. Applicable Penalties – ALEs are liable for penalties if one or more full-time employees receive subsidies for purchasing healthcare coverage through an Exchange. One of two penalties may apply depending on the circumstances:
        • 4980H(a) penalty – Penalty for not offering coverage to all full-time employees and their dependents. This penalty does not apply if the ALE intends to cover all eligible employees. ALEs must offer at least 95 percent of their eligible employees’ health care coverage. Monthly penalties are determined by this equation:
          1. ALE’s number of full-time employees (minus 30) X 1/12 of $2,000 (as adjusted), for any applicable month
          2. The $2,000amount is adjusted for the calendar year after 2014:
          3. $2,080 – 2015; $2,160 – 2016; $2,260 – 2017; $2,320 – 2018
        • 4980H(b) penalty – penalty for offering coverage – ALEs are subject to penalties even if they offer coverage to eligible employees if one or more full-time employees obtain subsidies through an Exchange because:
          1. The ALE didn’t offer all eligible employees coverage
          2. The coverage offered is unaffordable or does not provide minimum value.
          3. Monthly penalties are determined by this equation: 1/12 of $3,000 (as adjusted) for any applicable month
            1. $3,120 – 2015; $3,240 – 2016; $3,390 – 2017; $3,480 – 2018

Contact one of our advisors for assistance or if you have any questions about compliance in the New Year.

SOURCES: www.dol.gov, www. HHS.gov, https://www.federalregister.gov/documents/2018/04/17/2018-07355/patient-protectionand-affordable-care-act-hhs-notice-of-benefit-and-payment-parameters-for-2019, https://www.irs.gov/e-fileproviders/air/affordable-care-act-information-return-air-program


Final Rule on Nondiscrimination in Health Programs and Activities

From the Department of Health and Human Services.

Final rule prohibits discrimination based on race, color, national origin, sex, age or disability; enhances language assistance for individuals with limited English proficiency; and protects individuals with disabilities.

The Department of Health and Human Services (HHS) issued a final rule to advance health equity and reduce health care disparities. Under the rule, individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity and sex stereotyping. In addition to implementing Section 1557’s prohibition on sex discrimination, the final rule also enhances language assistance for people with limited English proficiency and helps to ensure effective communication for individuals with disabilities. The protections in the final rule and Section 1557 regarding individuals’ rights and the responsibilities of many health insurers, hospitals, and health plans administered by or receiving federal funds from HHS build on existing federal civil rights laws to advance protections for underserved, underinsured, and often excluded populations.

The Nondiscrimination in Health Programs and Activities final rule implements Section 1557 of the Affordable Care Act, which is the first federal civil rights law to broadly prohibit discrimination on the basis of sex in federally funded health programs. Previously, civil rights laws enforced by HHS’s Office for Civil Rights (OCR) broadly barred discrimination based only on race, color, national origin, disability, or age.

“A central goal of the Affordable Care Act is to help all Americans access quality, affordable health care. Today’s announcement is a key step toward realizing equity within our health care system and reaffirms this Administration's commitment to giving every American access to the health care they deserve," said HHS Secretary Sylvia M. Burwell.

The final rule helps consumers who are seeking to understand their rights and clarifies the responsibilities of health care providers and insurers that receive federal funds. The final rule also addresses the responsibilities of issuers that offer plans in the Health Insurance Marketplaces. Among other things, the final rule prohibits marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability. The final rule also prohibits discriminatory practices by health care providers, such as hospitals that accept Medicare or doctors who participate in the Medicaid program.

The final rule prohibits sex discrimination in health care including by:

  • Requiring that women must be treated equally with men in the health care they receive. Other provisions of the ACA bar certain types of sex discrimination in insurance, for example by prohibiting women from being charged more than men for coverage. Under Section 1557, women are protected from discrimination not only in the health coverage they obtain but in the health services they seek from providers.
  • Prohibiting denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.

It also includes important protections for individuals with disabilities and enhances language assistance for people with limited English proficiency including by:

  • Requiring covered entities to make electronic information and newly constructed or altered facilities accessible to individuals with disabilities and to provide appropriate auxiliary aids and services for individuals with disabilities.
  • Requiring covered entities to take reasonable steps to provide meaningful access to individuals with limited English proficiency. Covered entities are also encouraged to develop language access plans.

While the final rule does not resolve whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under 1557. HHS supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue.

The final rule states that where application of any requirement of the rule would violate applicable Federal statutes protecting religious freedom and conscience, that application will not be required.

For more information about Section 1557, including factsheets on key provisions and frequently asked questions, visit http://www.hhs.gov/civil-rights/for-individuals/section-1557.

To learn more about non-discrimination and health information privacy laws, your civil rights, and privacy rights in health care and human service settings, and to find information on how to file a complaint, visit us at www.hhs.gov/ocr.


How to Prepare for a HIPAA Audit

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Original post benefitnews.com

The Department of Health and Human Services’ Office of Civil Rights has announced it will be launching phase two of the Health Insurance Portability and Accountability Act audit program. Advisers can help clients prepare by updating policies and procedures, among other steps.

HIPAA provides the ability to transfer and continue health insurance coverage for millions of American workers and their families when they change or lose their jobs, reduces healthcare fraud and abuse, mandates industry-wide standards for healthcare information on electronic billing and other processes; and requires the protection and confidential handling of protected health information.

HIPAA established national standards for the privacy and security of protected health information and the Health Information Technology for Economic and Clinical Health Act (HITECH). This established breach notification requirements to provide greater transparency for individuals whose information may be at risk.

HITECH requires OCR to conduct periodic audits of covered entity and business associate compliance with the HIPAA privacy, security and breach notification rules. OCR began its initial audit in 2011 and 2012 to assess the controls and processes implemented by 115 covered entities to comply with HIPAA.

Phase two of the audit will focus on any covered entity and business associate. OCR will identify pools of covered entities and business associates representing a wide range of healthcare providers, health plans and healthcare clearing houses.

Roy Bossen, partner at Hinshaw & Culbertson LLP, says the law firm he works for is considered a business associate because the firm deals with cases under medical malpractice.

“When we defend a hospital or a doctor, we have access to Protected Health Information (PHI),” Bossen says. “There is requirement in HIPAA for what a business associate must do to protect [PHI] as well.”

Bossen says there is not a specific penalty for not passing the audit; however an entity or business associate could face possible fines for failure of the audit.

“The next phase of the audit will be called a compliance review,” he says. “[Entities and business associates] will require a more in-depth review of what their policies and procedures are, and that could theoretically lead to fines and penalties.”

Bossen stresses that it is important for employers to determine whether they are a covered entity or business associate or if the audit even applies to an employer’s business. An employer that operates their own plan would be considered a covered entity.

Advisers and brokers can assist their clients by making sure employer’s policies and procedures are up to date while also making sure the employer’s practices match-up with the up to date policies and procedures.

“It is not uncommon in any field to have a great policy manual that’s in a nice binder on a shelf or an email document that gets sent out, but nobody practices the organization of what their policies and procedures stipulate,” Bossen says.

The HIPAA phase two audit program will begin the next couple months and should a covered entity or business associate be contacted for a desk audit or onsite audit.

Both audits can take up to 10 days to be reviewed and the auditor will have entity’s final report within 30 business days.


New Guidance on Preventive Services Required Under the Affordable Care Act

Originally posted by www.simandlhrlaw.com

Recently, the Departments of Labor, Health and Human Services, and Treasury jointly issued guidance on the coverage of preventive services required under the Affordable Care Act (ACA). By way of background, the ACA requires that non-grandfathered group health plans provide preventive services, such as screenings, immunizations, contraception, and well-woman visits, without cost-sharing requirements. The preventive services are based upon recommendations of the United States Preventive Services Task Force (USPSTF) and comprehensive guidelines supported by the Health Resources and Services Administration (HRSA). The new guidance is outlined in Part XXVI of the series FAQs About Affordable Care Act Implementation and clarifies the coverage of preventive services specifically related to: 

  • Contraceptives;
  • BRCA Testing;
  • Gender-Specific USPSTF Recommendations; and
  • Pregnancy Care for Dependents.

Contraceptive Coverage

Prior guidance issued by the Departments required that women have access to the full range of FDA-approved contraceptive methods without cost-sharing. However, the guidance also provided that health plans were permitted to use reasonable medical management techniques to control costs such as imposing cost-sharing on brand name drugs to encourage the use of generic equivalents. The new FAQs provide further guidance on the scope of coverage required for contraception and what constitutes "reasonable" medical management techniques.

The individual FAQs on contraception clarified the following requirements:

  • Health plans must cover without cost-sharing at least one version of all the contraception methods identified in the FDA Birth Control Guide. Currently, the guide lists 18 forms of contraception including, but not limited to: oral contraceptives; intrauterine devices; barriers; hormonal patches; and sterilization surgery.
  • Plans may use reasonable medical management such as imposing cost-sharing on some items and services to encourage individuals to use other items or services within the contraception method. For example, a plan may impose cost-sharing (including full cost-sharing) on brand name oral contraceptives to encourage use of generics or impose different copayments to encourage the use of one of several FDA-approved intrauterine devices.
  • If the health plan is using medical management to control costs within a specified contraception method, the plan must have an exception process that is "easily accessible, transparent and sufficiently expedient" and that is not unduly burdensome on the individual, provider or individual acting on the individual's behalf. Also, the plan is required to defer to the determination of the individual's attending provider. Thus, the plan must cover an item or service without cost-sharing if a treating physician deems it medically necessary.
  • Plans that try to offer coverage for some - but not all - FDA-identified contraceptive methods will not comply with the health care reform law and its rules. For example, plans cannot cover barrier and hormonal methods of contraception while excluding coverage for implants or sterilization.

BRCA Testing

The preventive services required under the ACA include screening for women who have a family member with breast, ovarian, tubal or peritoneal cancer to identify a family history that may be associated with an increased risk related to the breast cancer susceptibility genes - BRCA 1 or BRCA 2. Prior guidance clarified that women with positive screening results should receive genetic counseling and, if indicated after counseling, BRCA testing. However, there was confusion as to whether or to what extent the recommendation applied to a woman with a personal history of cancer that was not BRCA-related.

The new guidance clarifies that the USPSTF recommendation applies to women with a history of non-BRCA related cancer. Thus, a plan or issuer is required to cover without cost-sharing preventive screening, genetic counseling, and if deemed appropriate by her treating physician, BCRA tests for such women. The new guidance further clarifies that these preventive services must be provided regardless of whether a woman is exhibiting any symptoms and even if she is currently cancer-free.

Coverage of Preventive Services Based on Gender Identity

A number of the preventive services required by the ACA are gender-specific such as mammograms and BRCA testing for women and prostate exams for men. The new guidance clarifies that non-grandfathered health plans cannot limit coverage of preventive services based on an individual's sex assigned at birth, gender identity, or gender recorded by the plan. Rather, if the individual otherwise satisfies the criteria under the recommendation or guideline and is eligible under the terms of the plan, the plan must provide the preventive services that the individual's provider determines are medically appropriate. This means, for example, providing without cost-sharing a mammogram for a transgender man who has residual breast tissue.

Coverage for Dependents of Preventive Services Related to Pregnancy

Traditionally, a group health plan was able to restrict coverage for maternity care to employees and employees' spouses. However, under the ACA those benefits must now be provided to an eligible dependent. The new FAQs clarify that to the extent the maternity care is a preventive service under the ACA, the plan must provide prenatal benefits and other services intended to assist with healthy pregnancies to an eligible dependent without cost-sharing. The guidance further clarifies that an eligible dependent must be provided all other age appropriate women's health services without cost-sharing.

Action Steps

This recent guidance is a clarification of the existing preventive services required under the ACA rather than a modification. Accordingly, there is no delayed effective date typically applied to changes in preventive services. Employers and plan sponsors should review their plan documents and their administrative practices to ensure the plan is providing coverage of preventive services in accordance with the new guidance. Failure to provide the preventive services as required by the ACA could subject the employer to penalties of up to $100 per day per participant.


HHS Formally Moves To Close Loophole Allowing Plans Without Hospital Benefits

The Obama administration took another step to close what many see as a health-law loophole that allows large employers to offer medical plans without hospital coverage and bars their workers from subsidies to buy their own insurance.

“It has come to our attention that certain group health plan designs that provide no coverage of inpatient hospital services are being promoted,” the Department of Health and Human Services said in proposed rules issued late Friday.

Under the new standard, companies with at least 50 workers “must provide substantial coverage of both inpatient hospital services and physician services” to meet the Affordable Care Act’s threshold for a “minimum value” of coverage,  the agency said .

As  reported previously by Kaiser Health News, insurance analysts were surprised this summer to learn that HHS’ online calculator for determining minimum value approved plans without inpatient benefits.

Responding to aggressive marketing by consultants, numerous lower-wage employers had already agreed  to offer the low-cost plans for 2015 or were considering them.

Because a calculator-approved plan at work makes employees ineligible for tax credits to buy more comprehensive insurance in the law’s online marketplaces, consumer advocates feared the problem would trap workers in substandard coverage.

Large employers aren’t required to offer the “essential health benefits” such as hospitalization, physician care and prescriptions that the law orders for plans sold to individuals and smaller employers.

But few expected the official calculator to approve insurance without inpatient benefits. Meeting the minimum-value standard spares employers from penalties of up to $3,120 per worker next year.

HHS also proposed granting temporary relief to employers that have already committed to calculator-approved plans without hospital coverage for 2015. It also would allow workers at those companies to receive tax credits in the marketplaces if they choose to buy insurance there instead.

For 2016, no large-employer plan will meet the minimum-value test without inpatient benefits, HHS proposes.

“A plan that excludes substantial coverage for inpatient hospital and physician services is not a health plan in any meaningful sense and is contrary to the purpose” of the minimum-value standard, the agency said.

“Minimum value is minimum value,” said Timothy Jost, a consumer advocate and Washington and Lee University law professor who welcomed the change. “Nobody ever imagined that minimum value would not include hospitalization services.”

This KHN story can be republished for free ( details ).

Calculator-tested plans lacking inpatient coverage, designed by Key Benefit Administrators and others, have drawn strong interest from large retailers, restaurant chains, staffing companies and other lower-wage employers seeking to control costs, benefits consultants say. Typically the coverage costs half as much as major-medical insurance including hospital benefits.

The American Worker Plans, an Illinois-based benefits consultant, helped dozens of staffing firms with a total of about 20,000 employees to provide such plans for 2015, said Jon Duczak, the company’s senior vice president. Almost all of them have already signed deals to offer the coverage, he said. 

HHS’ move to disallow the insurance “is something I do applaud,” he said. “We were offering a product like this [only] because our clients were asking for it. We needed not only to satisfy our clients but to retain our business.”

Edward Lenz, senior counsel for the American Staffing Association, said the trade group has no problem with requiring hospitalization to meet the minimum-value standard for 2016. But it will seek more leeway for employers that had moved to implement plans without inpatient benefits for 2015.

“Many employers were well along the road” to committing to such plans but delayed signing contracts after Kaiser Health News reported that the administration might move against them, he said. Rather than punishing such companies for their caution, HHS should allow them to temporarily offer such coverage next year, he said.

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Appeals court nixes subsidies for HHS exchange users

Originally posted July 22, 2014 by Allison Bell on http://www.lifehealthpro.com

A three-judge panel at the D.C. Circuit Court of Appeals has issued a decision that could block efforts to expand access to private health coverage in states that decline to set up state-based insurance exchanges.

The judges ruled 2-1 in Jacqueline Halbig et al. vs. Sylvia Mathews Burwell et al. (Case Number 14-5018) that the Internal Revenue Service (IRS) has no authority under the Patient Protection and Affordable Care Act (PPACA) to provide premium tax credit subsidies for users of the PPACA public exchanges run by the U.S. Department of Health and Human Services (HHS).

The subsidies have helped cut the amount QHP buyers pay out-of-pocket for premiums to an average of less than $50 per month.

PPACA created a premium tax credit subsidy for people who buy qualified health plan (QHP) coverage through the exchanges by adding Section 36B to the Internal Revenue Code (IRC).

PPACA lets HHS set up public exchanges in states that decline to set up their own exchanges. IRC Section 36B talks about providing credits to users of state-based exchanges and makes no mention of any credits to be provided for people who buy QHP coverage through the HHS-run exchanges, Circuit Judge Thomas Griffith writes in an opinion for the majority.

"The fact is that the legislative record provides little indication one way or the other of congressional intent, but the statutory text does," Griffith writes. "Section 36B plainly makes subsidies available only on exchanges established by states. And in the absence of any contrary indications, that text is conclusive evidence of Congress’s intent."

Griffith notes that Congress explicitly imposed some key PPACA commercial health insurance provisions, such as guaranteed issue and community rating requirements, on federal territories without providing full exchange subsidy funding for the territories.

PPACA implements some health insurance requirements, such as the community rating requirements, by making changes to the federal Public Health Services Act. HHS last week decided that, because the territories are not going to receive full PPACA expansion funding, the Public Health Services Act excludes territories from its definition of "state," and the PPACA insurance requirements seem to be destabilizing the territories' health insurance markets, the territories can be exempt from the PPACA rules that were set by changing the Public Health Services Act.


3 ways the Hobby Lobby decision affects workplaces

Originally posted July 1, 2014 by Eric B. Meyer on www.lifehealthpro.com.

Mid-morning yesterday, the Internet broke shortly after the Supreme Court issued its 5-4 decision in HHS v. Hobby Lobby Stores, Inc..

Jeez, I'm still cleaning out my Twitter, LinkedIn and Facebook feeds.

In case your wifi, 4G, 3G, dial-up, TV, radio, and other electronics picked the wrong day to quit sniffing glue, the long and short of yesterday's Supreme Court decision is this: Smaller, closely-held (think: family-owned) companies don't have to provide access to birth control if doing so would conflict with an employer's religious beliefs.

So, how does yesterday's decision affect your workplace? I promised you three ways, and here they are:

  1. The court's opinion creates a PPACA exception for closely-held business. If your company isn't closely held, then there's nothing to see here;
  2. The Hobby Lobby decision does not allow employers (closely-held or otherwise) to discriminate against employees under the guise of a religious practice. In the dissent, Justice Ginsburg pondered, "Suppose an employer's sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage or according women equal pay for substantially similar work. Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?" Well, no. The majority recognized that "the Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to [a protected class], and prohibitions on [discrimination] are precisely tailored to achieve that critical goal."

The Court's opinion is a good reminder about religious accommodations in the workplace. Title VII requires covered employers to make reasonable accommodations for a worker's sincerely-held religious beliefs unless doing so would impose an undue hardship on business operations. The "sincerity" of an employee's stated religious belief is usually not in dispute. (More on that here). And, in these situations, an employer should not judge the employee's religious belief to determine whether it is plausible. Rather, the focus should usually be on whether the accommodation would impose an undue hardship — because the burden there is rather low.


What if the PPACA plan tax credit is wrong?

Originally posted June 20, 2014 by Allison Bell on www.lifehealthpro.com.

Issuers of public exchange plans should use enrollment records and formal appeal processes to clear up any consumer concerns about tax credit subsidy amounts. Issuers of "qualified health plans" (QHPs) should not simply assume a consumer knows what the right subsidy amount is.

Officials at the Center for Consumer Information & Insurance Oversight (CCIIO) -- the U.S. Department of Health and Human Services (HHS) agency in charge of overseeing Patient Protection and Affordable Care Act (PPACA) commercial health insurance programs -- give that answer and others in a new batch of exchange plan casework advice.

CCIIO officials also answer questions about matters such as "plan enrollees" who appear out of nowhere, the definition of "defective enrollment," and the meaning of "ARC referral."

In answers to questions about QHP "advance premium tax credit" problems, officials note that QHP issuers may have access to two sets of enrollment data: 834 transaction files from the exchange, and "pre-audit files." An issuer can use either the 834 file data or the pre-audit file data to solve tax credit questions, officials say. If neither source works, the consumer will have to file a formal appeal through the exchange program appeal system, according to officials.

Similarly, if consumers say they have enrolled in a QHP, and the QHP has no ready information about the consumers, the first step should be for the issuer to look at the 834 files and the pre-audit files. If consumers can show that they have formal confirmation that they enrolled in the QHP, the issuer should talk to the help desk CCIIO runs for the QHP issuers, the CCIIO says.

Officials note that they are using the term "defective enrollment" to refer to a situation in which a consumer has completed a QHP enrollment through an exchange, but the QHP issuer has no record of the enrollment in either an 834 file or a pre-audit file.

In the answer to a question about "ARC referrals," CCIIO officials say they use the term to describe urgent QHP problems that are referred to an "advance resolution center." The call center routes those urgent cases to regional offices.

For insurers, the standard resolution time for ARC referral cases is 72 hours. But "we request that issuers give these infrequent cases their prompt attention," officials say.


HHS Issues Final Rule on SHOP Exchange Program

This content was originally published on the IFEBP.org website.

The Department of Health and Human Services (HHS) released a final rule implementing Affordable Care Act provisions relating to the Small Business Health Options Program (SHOP). This rule finalizes the amendments in the proposed rule of March 11, 2013, regarding triggering events and special enrollment periods. It implements a transitional policy regarding employees' choice of qualified health plans (QHPs) in the SHOP.

  • The final rule changes the special enrollment period from 60 days to 30 days in most instances.
  • If an employee or dependent becomes eligible for premium assistance under CHIP or loses eligibility for Medicaid or CHIP, the employee or dependent would have a 60-day special enrollment period to select a Qualified Health Plan.
  • There is a transitional rule regarding what QHPs an employer may choose to offer.

The regulations are effective July 1, 2013.

HHS also published a