Welcome to Issue No. 1 of the Baldwin Bulletin – a monthly guide to important regulatory developments, legal news and employee benefits-related industry happenings, designed to keep you abreast of the latest employee benefits compliance-related changes.
The Baldwin Regulatory Compliance Collaborative (BRCC)
Hello and welcome to the inaugural edition of the Baldwin Bulletin. The Baldwin Bulletin is the Baldwin Regulatory Compliance Collaborative’s (“BRCC’s”) monthly compliance-related informational publication. Here, we will provide timely and essential information related to employee benefits regulatory news, legal events, and industry happenings. As this is our first monthly release, we wanted to take a few moments to introduce the BRCC to our clients and to provide you with information regarding the new and enhanced services and solutions we will be providing to clients in the coming weeks and months.
Over the course of the last year, our individual regional partnerships that make up Baldwin Risk Partners have been reorganizing their compliance resources to create a new nationalized compliance practice for the benefit of our clients. By nationalizing our compliance resources into a streamlined collaborative, we will be able to significantly expand our capabilities for client service, both in terms of the scope and depth of experience and skill we are able to offer our clients. Accordingly, moving forward, compliance-related news, as well as our other compliance solutions and services, will be provided via an interconnected network of national compliance attorneys and other resources, referred to as the Baldwin Regulatory Compliance Collaborative.
The nationalization and streamlining of our compliance resources is going to provide clients with access to potential preferred partners, discounted subscription rates, and other valuable and timely incentives. At this time, we are working with our national partners to come up with the most favorable terms for our clients and this process will take a bit of time.
Respecting our present specific service capabilities, we are already primed and positioned to offer the following service guarantees:
- A 24-hour national response window respecting any specific inquires of a complex compliance nature from you or from our client experience teams throughout the United States;
- A national team of legal and compliance professionals to vet and respond to complex inquiries that are outside the scope of services for our online employee benefits and labor and employment law software and vendor partners, such as Mineral, HR360, and the like; and,
- Dedicated regional compliance professionals assigned throughout your specific geographic region to assist with day-to-day compliance and administrative concerns
In the coming months, we will bolster these capabilities with a range of new solutions and services, including:
- The Baldwin Bulletin – a one-stop publication for regulatory updates, legal news, and industry happenings (August 2022);
- HR-Link Services – State and locally-focused compliance and HR consulting capabilities to assist clients with leave laws and ordinances, state disability laws, and other human resources-related issues (Winter, 2022 / Spring 2023);
- The Plan Document Connection – A new nationally-operated aggregator and document production service that will provide for direct consulting in the plan document production process with our preferred partners (October 2022);
- Form 5500 Reporting Solutions – A new nationally-operated Form 5500 production and filing center that will provide for direct consulting in the Form 5500 production and guidance respecting the filing processes with our preferred partners (November 2022);
- The ACA Information Reporting Assistance Center – A new nationally-operated ACA Information Reporting service offering direct consulting respecting forms preparation and filing errors, educational resources, and common templates, forms, and other documents clients may require (December 2022).
And that’s just Phase I of our nationalization project. Phases II and III are already in the planning and development stages and will offer the following additional client solutions and support services:
- The State and Local Mandates Resource Center (Winter 2022);
- The Baldwin Professional Education Institute (September 2022);
- HIPAA Complete – A turn-key HIPAA compliance solution for self-funded plan sponsors (January 2023);
- MHPAEA Compliance Center – a mental health parity and addiction equity educational and administrative support service to assist plan sponsors through the MHPAEA testing and audit requirements (July 2023);
- Non-discrimination Assuredness Center – via internally-hosted and preferred partner arrangements (July 2023);
- The M&A Operational Support Center – A national operational center focused on all things related to organizational mergers and acquisitions activities (Fall 2023); and,
- The Operational Audit Index – An operational employee benefits and related compliance auditing service to assure every client’s current and future states of compliance readiness (Spring 2023).
It’s a busy time for the BRCC and I believe that within the coming months, you will find us well positioned to compete with any other available vendor partner respecting our compliance-related solutions, services and operations. Please let us know if you have any questions, comments, suggestions, or other issues.
Jason N. Sheffield, J.D. | National Director of Compliance | Baldwin Risk Partners
The Baldwin Regulatory Compliance Collaborative (the “BRCC”) is a partnership of compliance professionals offering client support and compliance solutions for the benefit of the Baldwin Risk Partners organization. The BRCC team includes: Jason Sheffield, BRP National Director of Compliance; Richard Asensio, Burnham Benefits Insurance Services; Nicole L. Fender, the Capital Group; Bill Freeman, AHT Insurance; Stephanie Hall, RBA/TBA; Caitlin Hillenbrand, AHT Insurance; Paul Van Brunt, Baldwin Krystyn Sherman Partners (BKS); and Natashia Wright, Insgroup.
Significant Upcoming Transparency Compliance Deadlines
Annual Medicare Part D Notices Due by October 14
Each year, employers that offer prescription drug coverage must provide notices of “creditable” or “non-creditable” coverage to Medicare-eligible employees or covered dependents before each year’s Medicare Part D annual enrollment period begins. These notices provide valuable information to eligible Medicare beneficiaries and help them decide whether to enroll in your health plan or, enroll in Medicare Part D. Medicare beneficiaries who are not covered by creditable prescription drug coverage and do not enroll in Medicare Part D when first eligible will likely pay higher premiums if they enroll at a later date. Although there are no specific penalties associated with this notice requirement, failing to provide the notice may be detrimental to your employees.
The annual enrollment period runs from October 15, 2022 through December 7, 2022. The final day to provide these notices is October 14th.
2023 Plan Year ACA Affordability Percentage Rates Announced
The IRS has issued Revenue Procedure (Rev. Proc.) 2022-34, announcing that the affordability percentage for the 2023 plan year has decreased to 9.12% from 9.61 % in 2022. In addition, the IRS updated Code section 36B’s Applicable Percentage Table for the 2023 calendar year. The table is used to determine an individual’s eligibility for a subsidy in the Marketplace.
This is the most substantial decrease in this percentage since these rules were implemented. It is the lowest that this percentage has ever been set- at 0.38% below the statutory affordability percentage of 9.5%. As a result, many employers may have to lower their employee contributions to meet the adjusted percentage. Note also, that the affordability percentage for the individual mandate exemption increased slightly from 2022. Read more here.
New HIPAA Compliance Guidance
The Department of Health and Human Services (HHS)’ Office of Civil Rights (OCR) recently clarified the use of telehealth services once the COVID-19 public health emergency (PHE) ends. In addition, an updated interactive HIPAA Security Risk Assessment (SRA) Tool has been released.
OCR ISSUES CLARIFICATION REGARDING USE OF TELEHEALTH SERVICES
In March 2020, in response to the COVID-19 PHE, the OCR issued enforcement discretion stating it will not impose certain HIPAA penalties against health care providers using audio-only telehealth communications in good faith during the COVID-19 PHE. This enforcement discretion remains in effect until the COVID-19 PHE no longer exists. However, recent OCR guidance clarifies that audio-only telehealth services may have continued use even after this expiration date. This guidance issued addressed the following topics:
The HIPAA Privacy Rule allows covered entities to use remote communication technologies to provide telehealth services, including audio-only services, if reasonable safeguards are adopted to protect the privacy of protected health information (PHI).
- The HIPAA Security Rule applies to electronic PHI, which is PHI transmitted or maintained in, electronic media. The HIPAA Security Rule does not apply to audio-only telehealth services using a standard telephone line or landline because the information transmitted is not electronic.
- In some circumstances, the HIPAA Rules allow a covered health care provider or a health plan to conduct audio-only telehealth using remote communication technologies without a business associate agreement in place with the vendor. A vendor acting merely as a conduit for the PHI is not considered a business associate.
Covered health care providers may offer audio-only telehealth services consistent with the HIPAA Rules, regardless of whether any health plan covers or pays for those services.
The HIPAA Security Rule does not apply to services provided using traditional landlines but does apply when a covered entity uses electronic communication technologies to provide remote telehealth services. Current technologies that may be used for remote communication and require compliance with the HIPAA Security Rule include communication applications on a smartphone or Voice-over Internet Protocol (VoIP) technologies. Click here for more information.
UPDATED HIPAA SECURITY ASSESSMENT TOOL RELEASED
HHS through its Office of the National Coordinator for Health Information Technology, in collaboration with the OCR, has issued an updated version of the interactive SRA Tool. The SRA Tool, first developed in 2014, is designed to assist covered entities in performing and documenting HIPAA security risk assessments.
Although HHS designed the SRA Tool for health care providers in small- to medium-sized offices, it is a useful resource for all covered entities and business associates to review their implementation of the HIPAA Security Rule. The purpose of the update to the SRA Tool is to improve the ease of the tool for users. Highlights of the tool include:
- Covered entities and business associates are required to analyze the potential risks and vulnerabilities of their ePHI.
- Based on this analysis, covered entities and business associates are required to implement reasonable and appropriate safeguards.
- Risk assessment is an ongoing process.
- The SRA Tool can help guide a covered entity through the risk assessment process.
- It is a Windows-based application that can be run on a user’s computer.
- The tool collects data; it does not send data anywhere.
The following additional resources are also available:
For more information visit Security Risk Assessment Tool | HealthIT.gov.
Telehealth Fraud on the Increase
On July 20, 2022, HHS’ Office of Inspector General (OIG) issued a Special Fraud Alert to warn practitioners of the increased potential fraud by telemedicine companies who are exploiting the growing acceptance of providing medical care through the use of telehealth. On the same day, the Department of Justice (DOJ) announced criminal charges against 36 individuals across the U.S., alleging more than $1.2 billion in fraudulent claims.
While the fraud schemes vary in design and operation, many that resulted in fraudulent submissions to Federal government programs have involved providing kickbacks to practitioners by generating orders for medically unnecessary durable medical equipment, genetic testing, wound care items or prescription drugs. The Special Fraud Alert includes a list of potential characteristics of fraudulent practices to be on the lookout for.
2022 Medical Loss Ratio Rebates
Medical loss rebate (MLR) rules were established by the Affordable Care Act to help control health care coverage costs and ensure that enrollees receive value for their premium dollars. These rules, applicable to fully insured plans, require health insurance issuers to spend at least 80 percent (small group and individual market) or 85 percent (large group market) of their premiums on health care and health care quality improvement activities.
Issuers that do not meet these requirements must pay rebates to consumers. As the sponsor of a fully insured group health plan, in the coming weeks, you may be receiving an MLR from your issuer for the 2021 reporting year. Sponsors of self-insured and level-funded medical plans, however, are not subject to these requirements, and thus, will not receive MLRs.
Employers that will receive rebates should review the MLR rebate rules and decide how they will administer the rebates. Note that to the extent a rebate qualifies as a plan asset, ERISA generally requires the amount to be held in trust. Most employers with insured plans do not maintain trusts for their health plans.
The DOL has provided relief from the trust requirement for rebates that are used within three months of their receipt. THUS, EMPLOYERS WHO DECIDE TO DISTRIBUTE THE REBATE TO PARTICIPANTS SHOULD ADHERE TO THIS THREE-MONTH TIME LIMIT. To read more regarding the various compliance steps based on the DOL’s guidance to help plan sponsors decide what to do with their MLR rebate, see here.
FTC to Investigate Pharmacy Benefit Managers
The Federal Trade Commission (FTC) has launched a major investigation into the business practices of six major U.S. pharmacy benefit managers (PBM)- CVS Caremark, Express Scripts, Optum Rx, Humana, Prime Therapeutics and MedImpact Healthcare Systems. A key focus of the investigation will be to ascertain how vertical integration has affected access to prescription drugs and their cost to patients. According to the FTC vertical integration means that the largest PBMs are affiliated not only with major health plans but are also affiliated with mail order and specialty pharmacies, which gives them extensive influence in the pharmacy supply chain. Currently, many PBM practices in setting drug pricing policy are kept secret, making it very difficult for patients. It is hopeful that the investigation will shed light on their practices and their impact on pharmacies, payers, doctors, and patients. For more information, read here.
Federal Guidance Issued in Response to U.S. Supreme Court Ruling in the Case of Dobbs V. Jackson Women’s Health
On June 29, 2022, in response to the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health, that overturned Roe v. Wade, HHS’ Office for Civil Rights (OCR) issued new guidance to help protect patients seeking reproductive health care as well as their providers. In general, the guidance addresses how federal law and regulations safeguard individuals’ protected health information (PHI) by reiterating that providers are not required to disclose private information to third parties. In addition, the guidance addresses the extent to which PHI is protected on personal cell phones and tablets. The HHS news release is available here. A summary of permitted and required disclosures of PHI without obtaining a patient’s authorization under the Privacy Rule provisions of Health Insurance Portability and Accountability Act (HIPAA) is available here, and a guide for protecting the privacy and security of personal cell phones and tables is available here.
In a related development, the Departments of Labor, HHS and Treasury (Departments) jointly issued a letter warning health plan sponsors and insurers to make sure that they are complying with the contraceptive coverage mandate under the Affordable Care Act to avoid future enforcement actions. This was followed up with the Departments issuing Frequency Asked Questions on July 28, 2022.
The Latest from the States on Dobbs V. Jackson Women’s Health Supreme Court Decision
Since the overturn of Roe v. Wade, there has been a flurry of activity on the state level to enact legislation to either ban or restrict abortion, or to protect abortion rights. The impact of this ruling is significant, with as many as 50 percent of all states expected to limit or outlaw abortion as a result. This includes 13 states with so-called trigger laws that were in effect prior to Roe v. Wade that were reinstated when the decision was overturned. Most recently, Indiana became the first state since the Dobbs decision to enact legislation to outlaw most abortions, effective September 15, 2022. On the flip side, on August 2, 2022, Kansas voters retained the right to abortion in its state constitution. Please refer to the interactive website maintained by the New York Times for the latest state by state information, available here.
Regulations Proposed to Strengthen ACA Section 1557 Nondiscrimination Rules
The Department of Health and Human Services (HHS) has recently issued proposed regulations to revise, reinstate, and expand upon prior regulations to implement Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination in certain health programs and activities based on race, color, national origin, sex, age, or disability. Prior regulations issued in 2016 were interpreted to include provisions that prohibited discrimination based on gender identity and termination of pregnancy. These provisions were vacated in 2019 and new regulations were issued in 2020 that significantly repealed these provisions.
In particular, the proposed regulations seek to reinstate the scope of Section 1557 to cover HHS’ health programs and activities, clarify the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance, codify sex discrimination protections that are consistent with recent court rulings, reinstate protections on the basis of gender identity and sexual orientation, refine and strengthen the process for raising conscience and religious freedom objections, and require Section 1557 anti-discrimination policies and staff training for those receiving federal assistance.
Tax-Free Student Loan Assistance Under the Cares Act and the CAA
On March 27, 2020, the Coronavirus Aid, Relief and Economic Security Act (CARES Act), among other relief, included a provision that temporarily permits employers to make tax-free payments of up to $5,250 per year toward their employees’ student loans. This expanded Section 127 of the Internal Revenue Code which permits tax-free payments of up to that amount for qualified educational expenses. This relief was set to expire on December 31, 2020, but the Consolidated Appropriations Act (CAA) extended this provision through December 31, 2025.
Thus, until the end of 2025, employer payments toward their employees’ qualified educational loans can be excluded from the employees’ taxable income, resulting in tax advantages for both parties. Employer contributions made outside of this time frame or in excess of the monetary limit are generally considered taxable wages, subject to all employment taxes. Accordingly, employers should consider the following action steps:
- Establish or amend any existing education assistance programs to take advantage of the favorable tax treatment for contributions towards employees’ student loans.
- Confirm they meet the employer requirements for payments to qualify as tax-free under Section 127:
- Have a written educational assistance program;
- Notify eligible employees;
- Do not offer other taxable benefits that can be chosen instead of educational assistance (cash or noncash);
- Do not discriminate in favor of highly compensated employees; and
- Confirm employees are not receiving more than $5,250 (from all employers combined)
- Confirm eligible employees. An employer may treat the following individuals as employees for this purpose (Note: an employer is not required to make all employees eligible for its qualified educational assistance program and should be mindful of discrimination when designing such a program):
- Current employees (including those absent on leave);
- Former employees who retired, left on disability, or were laid-off;
- Leased employees; and
- Self-employed individuals (partners, sole proprietors, more-than-2% Subchapter S shareholders, and independent contractors).
San Francisco Updates
2023 HEALTH CARE SECURITY ORDINANCE EXPENDITURE RATE ANNOUNCED
The San Francisco Office of Labor Standards Enforcement (OLSE) recently announced the 2023 expenditure rates to comply with the City’s Health Care Security Ordinance (HCSO):
Depending on the number of hours payable to an employee who is not exempt from the HCSO (covered employee), a large employer subject to the HCSO (covered employer) could be required to spend up to $1,754.40 per quarter ($584.80 per month) on behalf of each covered employee to satisfy the HCSO requirements during 2023. In general, health care expenditures include employer contributions toward medical, dental and vision coverage. Special rules apply to an employer with a self-funded plan (visit the HCSO website here for more information).
Specific information regarding the HCSO, as well as other laws applicable to the city and county of San Francisco, can be found on the OLSE website.
NEW HEALTH CARE ACCOUNTABILITY ORDINANCE MINIMUM STANDARDS RELEASED
Effective January 1, 2023, new minimum standards will apply for employers subject to the Health Care Accountability Ordinance (HCAO). The HCAO applies to most city contractors and tenants, including those at the San Francisco International Airport and the Port of San Francisco, and requires covered employers to either:
- Offer their employees a compliant health plan that meets all the 2023 HCAO minimum standards(available here);
- Make payments to the city for use by the Department of Public Health, or
- In limited circumstances, to make payments directly to their covered employees.
For more information about the HCAO, please visit the HCAO Webpage.
CITY VOTERS PASS PUBLIC HEALTH EMERGENCY LEAVE ORDINANCE
The Public Health Emergency Leave Ordinance (PHELO) was passed by voter initiative Prop G this past June. The law will become effective October 1, 2022. In summary, the leave is available only during a Public Health Emergency, as defined by the PHELO and will require businesses with 100 or more employees worldwide must provide up to 80 hours of paid PHELO leave to each employee who performs work in San Francisco. The paid leave is in addition to any paid time off, including paid sick leave under the San Francisco Paid Sick Leave Ordinance.
Employee Benefits Related Litigation
MARRIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH BENEFIT PLAN ET AL., V. DAVITA, INC., ET AL.
On June 21, 2022, the U.S. Supreme Court ruled that a health plan that provided limited out-of-network coverage for outpatient kidney dialysis did not violate the Medicare Secondary Payer (MSP) statute, even though it provided limited benefits for outpatient dialysis. Davita, Inc. brought suit against the health plan and its third-party administrator, alleging that the plan’s classification of outpatient dialysis treatment as out-of-network, resulted in a lower reimbursement rate to them as compared to providers of other medical services.
The MSP statute makes Medicare a “secondary” payer to an individual’s existing insurance plan for certain medical services, including dialysis, when that plan already covers the same services, if the plan doesn’t differentiate in the benefits it provides individuals having end-stage renal disease than those it provides others begin covered under the health plan. In addition, the plan must not consider the fact that the individual may be eligible for Medicare due to his or her end-stage renal disease. The Court concluded that even though this limitation had a disparate impact on those needing outpatient dialysis, the MSP statute was not violated here as the same benefits were provided to all plan participants, regardless of whether or not they had end-stage renal disease.
For more information, read the case here.
U.S. SUPREME COURT DECLINES TO HEAR LAWSUIT OVER PBM FIDUCIARY DUTY
The U.S. Supreme Court has declined to review a class action lawsuit (Doe v. Express Scripts) regarding the question as to whether a pharmacy benefit manager (PBM) has a fiduciary duty under the Employee Retirement Income Security Act (ERISA) to lower drug prices if it has the ability to do so. Previously, a lower federal court had thrown out the lawsuit and an appellate court had ruled against the plaintiffs. This is viewed as a big win for the PBM industry, which is under increased scrutiny from the Federal government and Congress, as well as state regulators surrounding its practices on setting drug prices.
DISTRICT COURT APPROVES BCBS $2.7 BILLION SETTLEMENT
On August 9, 2022, the Federal Court for the Northern District of Alabama approved a proposed Blue Cross Blue Shield Association (BCBSA) settlement agreement resulting from a class action lawsuit filed against it more than nine years ago, taking the settlement one step closer to being finalized. Under the agreement, BCBSA agreed to pay $2.7 billion to the class of subscribers and to change their business practices.
The settlement agreement arose from a class action antitrust lawsuit called In re: Blue Cross Blue Shield Antitrust Litigation MDL 2406, N.D. Ala. Master File No. 2:13-cv-20000-RDP and was reached on behalf of individuals and companies that purchased or received health insurance provided or administered by a Blue Cross Blue Shield company. Class Representatives (“Plaintiffs”) reached an agreement on October 16, 2020 with the Blue Cross Blue Shield Association (“BCBSA”) and Settling Individual Blue Plans (collectively, the “Settling Defendants”).
The Plaintiffs had alleged that Settling Defendants violated antitrust laws by entering into an agreement not to compete with each other and to limit competition among themselves in selling health insurance and administrative services for health insurance. The Settling Defendants denied all allegations of wrongdoing and asserted that their conduct resulted in lower healthcare costs and greater access to care for their customers. The Court did not decide who was right or wrong. Instead, the Plaintiffs and Settling Defendants agreed to a Settlement to avoid the risk and cost of further litigation.
For more information visit https://www.bcbssettlement.com/.
DISTRICT COURTS RULE AGAINST EXCLUSIONS FOR GENDER AFFIRMING CARE
Issues relating to health plan claims alleging discrimination based on sexual orientation or gender identity have begun making their way through the courts. Four recent cases were decided in favor of the plaintiffs – three dealt with gender identity/ gender dysphoria.
On June 6, 2002, a district court in Georgia ruled that a self-funded plan’s exclusion of gender identity disorder and sex change surgery violated Title VII (the Equal Protection Clause) of the Civil Rights Act of 1964. Then on June 10, 2022, a North Carolina district court similarly ruled that a North Carolina’s employer’s health plan’s exclusion discriminated based on sex and transgender status in violation of the Equal Protection Clause and Title VII. For more information see Lange v. Houston County, Georgia and Kadel, et al., v. Folwell, et al. See also Fain v. Crouch, 2022 WL 3015105, 2022 (S.D. W. Va. 2022).
In the case of Doe v. Catholic Relief Services, 2022 WL 3083439 (D. Md. 2022), a Maryland court ruled in favor of an employee whose employer, affiliated with the Catholic Church, dropped coverage for his same-sex spouse because of his sex. The court reasoned that Title VII did apply and rejected the defendant’s arguments, including that it should be exempt from Title VII because of its religious exemption, concluding that Title VII’s religious exemption applies only with respect to discrimination based on religion, not on sex, race or national origin.
LITIGATION REGARDING UNEQUAL ACCESS TO TRAVEL BENEFITS
The U.S. Supreme Court decision overturning Roe v. Wade continues to reverberate across the country with many employers providing or considering providing travel benefits for those seeking abortion services where the services remain legal. We have now begun to see litigation challenging such benefits as being discriminatory under Title VII of the Civil Rights Act because they are not also available to pregnant women who intend to carry their pregnancy to term. How the courts will ultimately rule in these cases is unknown at this time. Nonetheless, we anticipate continued litigation in this arena as proponents and opponents of abortion seek to uphold or block the provision of these benefits. The attached article from the law firm of Seyfarth Shaw describes this further.
QUESTION OF THE MONTH
Does the Federal Family and Medical Leave Act (FMLA) cover abortion and travel related expenses?
In short, under Federal law, leave for obtaining and recovering from an abortion is most likely covered under the FMLA (various state leave laws may also provide protection). FMLA regulations Section 120 stipulates that the FMLA applies to situations where the expectant mother is incapacitated as a result of her pregnancy even if the absence is less than the three consecutive day minimum normally required. This may also qualify as a “serious health condition” under the FMLA. The legislative history of the law specifically states that “miscarriage” is, so it seems logical that other related types of medical conditions would also be included.
Regarding whether travel time to another state for an abortion can be included in the FMLA leave period, there is little guidance in the law or regulations, or legislative history, or even the courts. That said, when such travel is so interconnected with the procedure itself, as in the case with abortion, it should be considered protected.
Because of the fluid nature of this subject matter, consultation with legal counsel is recommended.