This past year was eventful for group health plan compliance as COVID-related requirements continued in earnest throughout the year and the U.S. Supreme Court Dobbs decision put a spotlight on the coverage of reproductive health services, particularly in certain states. Additionally, the No Surprises Act and other group health plan transparency-related laws and regulations kept plan sponsors and their carriers/third-party administrators busy with various compliance requirements.
These transparency-related requirements are shaping up to be the most significant group health plan-related legislation since the Affordable Care Act (ACA) was signed into law in 2010.
Let’s reflect on the most noteworthy group health plan compliance developments of 2022 and the impacts they will have in 2023:
Dobbs Decision & Contraceptive Coverage Guidance
The Dobbs v. Jackson Women’s Health Organization decision by the U.S. Supreme Court in June 2022 overturned Roe v. Wade and Planned Parenthood v. Casey, precedents that established and maintained a federal constitutional right to abortion. This decision removed the federal constitutional protection of abortion access across the country and provided states with the ability to enact laws regulating abortion. As a result, some employers offered, or are considering offering, a travel assistance benefit for employees to receive an abortion out-of-state. This article details compliance considerations related to the decision. In a related action, the federal government released new contraceptive coverage guidance in July in response to reports of individuals having difficulty accessing free contraceptive coverage in accordance with the Affordable Care Act (ACA).
Prescription and Healthcare Spending Data Reporting
The Consolidated Appropriations Act of 2021 (CAA), passed by Congress in December 2020, included a requirement for group health plans (and health insurers) to submit detailed prescription drug pricing and healthcare spending data to the Centers for Medicare & Medicaid Services (CMS). This data, referred to as the RxDC report, will be collected and aggregated by CMS to publish public reports on prescription drug pricing trends starting in 2023. The publication of these reports is intended to enhance healthcare and prescription cost transparency.
The original deadline for plans to submit the RxDC reports for 2020 and 2021 was December 21, 2021. As we reported in December 2021, this deadline was extended by the federal government to December 27, 2022. More information and next steps to ensure compliance with this upcoming deadline are available here.
COVID-Related Requirements
Although the COVID-19 pandemic appears to be receding into the rearview mirror for many, COVID-related requirements continued in earnest throughout the year, including several extensions of the Public Health Emergency (PHE). The most recent extension of the PHE was announced on October 13, 2022, and will expire on January 11, 2023. These PHE extensions permit plans and insurance carriers to continue relying on the flexibilities instituted by the federal government, such as expanded access to telehealth capabilities and required coverage of medically appropriate COVID-19 tests, including over-the-counter tests, test-related visits, and vaccines, all without participant cost-sharing.
Note the PHE declaration is separate from, and should not be confused with, the COVID-19 National Emergency declared by the President, which impacts the end of the “outbreak period” (beginning March 1, 2020) for deadlines related to COBRA election and payment rules, HIPAA special enrollment, as well as other benefit plan deadlines. The most recent National Emergency was extended in February 2022 and is currently set to expire in March 2023. Additional information on the extension’s impact on COBRA deadlines can be found here.
No Surprises Act
The No Surprises Act (NSA), part of the Consolidated Appropriations Act of 2021, protects individuals covered under group and individual health plans from receiving surprise medical bills (also known as “balance billing”) when they receive most emergency services, non-emergency services from out-of-network providers at in-network facilities, as well as services from out-of-network air ambulance providers. The NSA went into effect on January 1, 2022, with certain disclosure requirements. The federal government released a new NSA Final Rule and corresponding FAQs in August 2022, implementing critical components of the NSA’s independent dispute resolution (IDR) process. Click here for more detailed information regarding the NSA FAQs and their key provisions applicable to group health plans.
Group health plans must post the NSA model notice detailing patient protections against surprise billing (accessed here) on their public websites. If a group health plan does not have its own public website (even if the employer sponsoring the plan does), it may contract with a carrier or third-party administrator (TPA) to post this model notice on its own public website on the plan’s behalf.
Machine Readable Files (MRFs)
The Transparency in Coverage (TiC) Final Rules, finalized in November 2020, required non-grandfathered group health plans to publish two separate Machine Readable Files (MRFs) on a public website by July 1, 2022. One file must reflect in-network rates, including negotiated rates for all covered services and items between the plan/carrier and in-network providers. The other file must reflect out-of-network allowed amounts paid to, and billed charges from, out-of-network providers for all covered services and items within a 90-day period.
The MRFs must be publicly available on a group health plan’s public website, free of charge, without requiring anyone, including plan participants and the general public, to log in with user account credentials or passwords. Similar to the NSA model notice detailed above, a group health plan that does not have its own public website (even if the employer sponsoring the plan does) may contract with a service provider, such as their carrier or TPA, to post the MRFs on the plan’s behalf. In these instances, the employer is not required to post the MRFs on its own public website.
Click here for a refresher article with more details on the MRFs.
Mental Health Parity Compliance
In accordance with the CAA, group health plans are now required to document compliance with the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) non-quantitative treatment limitation (NQTL) requirements. Group health plans must also provide an NQTL analysis to the Department of Labor (DOL) and/or the Department of Health and Human Services (HHS) upon request.
The MHPAEA prevents group health plans that provide mental health or substance use disorder benefits from imposing limits on those benefits that are more stringent than limits on medical/surgical benefits.
While this NQTL analysis requirement went into effect in February 2021, an increase in DOL enforcement and formal guidance is expected for 2023. So, group health plans are advised to work with their carriers, TPAs, and/or their Risk Strategies team members to conduct an MHPAEA NQTL comparative analysis on an annual basis. The Department of Labor provided a self-reporting tool link for further assistance and guidance.
ACA Family Glitch Correction & Related Cafeteria Plan Guidance
The IRS recently released a final rule correcting the ACA “family glitch” beginning in 2023. The final rule allows family members of employees to be eligible for financial assistance to enroll in marketplace Exchange plans if the cost of job-based family medical coverage is considered unaffordable by ACA standards.
While this final rule has no impact on employers’ ACA affordability and reporting requirements, the IRS issued related guidance permitting cafeteria plan election changes as a result of the “family glitch” correction. More details are available here.
ACA Preventive Services Lawsuit
In a closely watched case from September 2022 called Braidwood Management v. Becerra, a federal judge in Texas ruled that certain provisions of the ACA’s first-dollar preventive services coverage requirements, including contraceptive coverage and medication coverage to prevent HIV (commonly known as PrEP[1]), were unconstitutional on religious grounds. This is far from the last word on this case as the judge required additional briefs from the parties before deciding on the remedies and the broad application of this decision. As a result, the ACA preventive services coverage requirements currently remain in effect, but litigation is ongoing. Stay tuned for more updates on this case and its potential impact on group health plans, possibly in early 2023.
End-Stage Renal Disease/MSPA Decision
Finally, there was another U.S. Supreme Court case that received must less fanfare than the Dobbs abortion decision but could have a significant financial impact on end-stage renal disease (ESRD) claims within a self-funded plan.
The case, Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., involved a challenge by DaVita, a large national outpatient dialysis provider, to the coverage provisions limiting reimbursement rates for dialysis in group health plans. The Marietta plan covers dialysis providers only as out-of-network and reimburses them at a lower rate. DaVita argued that treating dialysis benefits less favorably (like the Marietta plan does) than other benefits violates the Medicare Secondary Payer Act (MSPA). Specifically, the MSPA prohibits employers and their group health plans from “taking into account” that a participant is eligible for Medicare as well as differentiating coverage between participants with ESRD and those without it.
In June 2022, the Court sided with the group health plan here and held that the plan’s coverage terms for outpatient dialysis do not violate the MSPA because those terms apply uniformly to all covered individuals.
Based on this decision in Marietta, other self-funded plans may now consider excluding outpatient dialysis as an in-network benefit or, at the very least, change the reimbursement rate for out-of-network providers. The Marietta decision confirms this to be permissible as long as the reimbursement rate is uniform and applies to all participants, regardless of an ESRD diagnosis.
Risk Strategies is committed to keeping employers informed and up to date. Learn how to prepare your group health plan for compliance in 2023 here or contact us at benefits@risk-strategies.com.
[1] PrEP stands for pre-exposure prophylaxis.
