On June 13, 2019, the Departments of Health and Human Services, Labor and Treasury released final regulations that will expand the use of Health Reimbursement Arrangements (HRAs), starting in January of 2020. The regulations will allow the integration of HRAs with individual health insurance coverage and also allow certain HRAs to be recognized as “excepted benefits,” which are exempt from many provisions of the Affordable Care Act (ACA).

Individual Coverage HRAs will enable employers to provide their workers with a fixed amount of money in a tax-preferred account each year that the worker can then use to buy coverage in the individual market. In an attempt to prevent employers from using the new HRAs to steer their sicker workers into the individual market, regulators have built certain “guardrails” into the rules. These include a prohibition on offering both a traditional group health plan and an Individual Coverage HRA to workers within the same class as well as a requirement that the HRA must be offered on the same terms and conditions to all workers within a given class. (However, the dollar amount of the Individual Coverage HRA may differ based on age or number of eligible dependents.)

Since enrollment in an Individual Coverage HRA would cause a worker to lose eligibility for a premium tax credit when purchasing individual health insurance through a public exchange, the regulations also require that workers be allowed to opt out of coverage and reimbursement at least once each plan year.

Proponents of the regulations contend that they will offer businesses, particularly small businesses, and their workers greater options and control over their health coverage.  Since the new HRAs will be more affordable than traditional group health coverage, these new options are expected to make it easier for small businesses to compete with larger businesses for talent. The most ardent supporters also believe that the expected increase in the individual market will spur competition, resulting in better options for consumers.

Others have expressed several areas of concern with regard to the new regulations. First, limitations on age variations in HRA contributions mean that older workers will always pay more than younger workers for the same coverage, unless the HRA contributions are large enough to cover the full premium.

Second, while the regulations require that workers be enrolled in a suitable individual health plan in order to participate in an Individual Coverage HRA, substantiation requirements are virtually non-existent. This is likely to result in healthier workers choosing coverage under non-compliant plans or purchasing no insurance at all. This could significantly increase the risk to the individual market and result in large premium increases.

Finally, the January 1, 2020 effective date gives exchanges little time to make the necessary changes to enrollment systems and materials. Many state-based exchanges have already made it clear that they will not be ready, and it is highly unlikely that the federal exchange will be ready either. This may result in some consumers receiving financial assistance for which they are not eligible, and which they will ultimately be expected to pay back.

​It will probably take several years before the true effect of these new regulations is known. In the meantime, it’s important to note that they make no changes to the existing HRA options currently available to employers.

The Affordable Care Act (“ACA”) requires larger employers (50 or more full-time equivalents) to offer “affordable” “minimum-value” health care to employees working 30 or more hours per week or face the possibility of significant penalties.  In response, some employers cut employee hours to avoid offering health insurance.  The recent class action settlement proposed by Dave & Buster’s (Marin v. Dave & Buster’s, Inc.) should serve as a cautionary reminder to employers who have cut or who are considering cutting employee hours to avoid the ACA employer mandate.

ERISA Section 510 makes it unlawful to retaliate or discriminate against a participant for exercising any right to which he or she is entitled under the provisions of an employee benefit plan or for the purpose of interfering with the attainment of any right to which the participant may become entitled under the plan.  The employees claimed that they were covered under the restaurant’s health insurance plan prior to the enactment of the ACA and that managers told them their hours would be cut to avoid the ACA. The ACA employer mandate would have represented an added cost to the company in excess of $2 million.  Avoiding this expense proved to be a false economy.
On December 7, the court gave preliminary approval to Dave & Buster’s for a $7.4 million settlement.  A hearing is scheduled for May 9, 2019 to determine if the settlement will be formally approved.
Although the future of the ACA is in question, it is in effect, and employers should assume that it will be enforced. Employers should review and document any changes to employee work schedules, be sure that reductions in employee hours are for legitimate business purposes, and avoid making comments that suggest staffing and scheduling decisions are made on the basis of health care costs or avoiding the ACA employer mandate. Employers who have already made such changes should consult with legal counsel to consider any steps that should be taken to avoid liability.

According to a 2013 study published in JAMA in March, people with Medicare Part D drug insurance unknowingly overpaid for prescriptions by $135 million. Copays in those plans were higher than the cash price for nearly 25% of drugs purchased. Patients overpaid by more than 33% for 12 of the 20 most commonly prescribed drugs.
President Trump recently signed two bills passed by Congress with broad bipartisan support, “Know the Lowest Price Act of 2018” (for Medicare and Medicare Advantage beneficiaries) and “Patient Right to Know Drug Prices Act” (for commercial employer-based and individual policies).

When the cash price for a prescription is less than what you would pay using your insurance plan, pharmacists may no longer be required to keep that a secret. In the past, pharmacists could have been fined for violating their contracts with pharmacy benefit managers and even dropped from insurance networks for disclosing cheaper drug options to consumers. There is a catch, though: pharmacists will be permitted, but not required, to tell patients about lower-cost options. It’s up to the customer to ask.

COBRA offers employee and/or covered dependents an eleven month extension to the current COBRA completion date if certain criteria are met. The extension is provided so qualified beneficiaries may remain on COBRA until they become entitled to Medicare. In theory, affected individuals will meet Medicare’s requirements and be entitled within these eleven months. During the extension, Plan Administrators may charge up to a 50% fee on the applicable premium. The following are the eleven month extension criteria:

1. The original qualifying event must have been: Termination of Employment or Reduction in Work Hours.
   
2. Either the employee or covered dependent (spouse or child) must have been considered “disabled” by the Social Security Administration (SSA) on or prior to the 60th day on COBRA.
3. The Plan Administrator must be notified of the SSA’s disability determination within 60 days after the latest of: a. The date of the SSA determination; b. The date of the COBRA qualifying event; c. The date the employee’s group coverage was lost as a result of the COBRA qualifying event; or d. The date the employee and covered spouse are informed through the carrier’s Summary Plan Description of both the responsibility of providing the “disability” determination and the procedures for providing the notice; and
4. The SSA “disability” notification must be provided to the Plan Administrator prior to the COBRA completion date.

When the above criteria are met, all individuals enrolled under COBRA shall be eligible for the extension. The DOL and IRS have an interesting interpretation of this aspect of the extension. They have determined that the qualified beneficiary who is deemed disabled does not have to elect to continue under COBRA. So, if you receive a SSA disability determination of the employee or covered dependent that was enrolled on the group plan on the day prior to the qualifying event, it does not matter if they elect to continue under COBRA – all other qualified beneficiaries should be offered the extension. If this is the case, Plan Administrators may only charge the standard 2% (and not 50%) COBRA fee.

We would like to point of the importance of 3d above. If you review the DOL COBRA General Notice, the letter provides detailed instructions as to the notification requirement if a qualified beneficiary is deemed disabled by SSA. If the employee (and covered spouse) never received the General Notice upon enrollment in a group plan, they would have to be offered the eleven month extension even if they notified the Plan Administrator late.

Over the years, we have found the qualified beneficiary’s 60 day notification requirement to be the most often missed element for the disability extension. Some Administrators are adamant about meeting this requirement; others let it slide if all other criteria are met. In theory, an employee may have received his/her General Notice in 1986. Is it reasonable to assume anyone would retain the disability notification requirements after 32 years? Remember COBRA is a minimum requirement. If you wish to offer greater benefits than that required by law, you are welcome to do so. But, you need to make sure the group plan insurer is on board with your policy because they are ultimately responsible for the claims during the disability eleven month extension.

Eligible /Ineligible Plans for COBRA Continuation
With most organizations, it is easy to determine if a group plan is eligible for COBRA continuation. But some group plans might not be as obvious. First, it is important to understand the definition of a group plan. The IRS defines a group plan as “a plan maintained by an employer or employee organization to provide health care to individuals who have an employment-related connection to the employer or employee organization or to their families.” These individuals consist of employees, former employees and other associated or formerly associated with the employer or employee organization in a business relationship (including members of a union who are not current employees). Health care is provided under a plan whether provided directly or through insurance or reimbursement.

Group health plans must provide medical care (within the meaning of IRS Code, Section 213(d)). Medical care is defined as a diagnosis, cure, mitigation, treatment or prevention of disease and any other undertaking affecting any structure or function of the body. Lastly, the group health plan must be maintained by the employer.
Eligible Plans for COBRA Continuation
The following lists are plans you should be offering COBRA continuation.

1. Health Insurance Plans, HMOs and Self-funded Health Plans;
2. Dental Plans;
3. Vision Plans;
4. Indemnity type Cancer (or specific disease) Policies – plans that pay a dollar amount per incident and not an amount based upon actual claims;
5. Prescription Drug Plans;
6. Health Flexible Spending Arrangements (FSAs);
7. Health Reimbursement Plans (HRAs);
8. Executive Medical Reimbursement Self-funded Plans;
9. Drug or Alcohol Treatment Programs;
10. Wellness Plans; and
11. Employee Assistance Plans.

Ineligible Plans for COBRA Continuation
The following is a review of “group” plans that are not eligible for COBRA continuation. (Remember, COBRA is a minimum requirement placed on employers. If they chose to offer continuation coverage on these plans, they can do so provided they have the approval of the insurer/provider.)

1. Health Savings Account (HSAs) and Archer MSAs;
2. Long-term Care Plans;
3. Accidental Death and Dismemberment Plans (AD&D);
4. Group Term Life Plans (with the exception of Minnesota where state law requires it);
5. Short – and Long-term Disability Plans (STD & LTD);
6. Hospital Indemnity Plans (where payments are not directly associated with the cost of services). For example, the plan pays $200 per day the person is in the hospital;
7. Company Fitness Centers and On-site First Aid Facility; and
8. Employee Discount Plans.
   

Well, first let's ask where did the $2,500 per year in savings go that was promised by the PPACA pundits that would be real since the participation was going up by 10 or 20 or even some said 30 million people?  Coverage DID increase but largely because of expanded Medicaide ... not because all those that are newly insured decided to comply and buy health insurance for the first time.

So, where is the savings?  You add millions to the roles and costs still go up?  That is NOT insurance ... which is purely based on spreading risk to make it more predictable and cost effective to manage.  Since I spend most of my time on the frontlines in this changing system, let's really examine what happened and how NONE of what is being discussed by Congress and Trump can possibly make any difference.  The "not make any difference" part is easily demonstrated in most any series of reports you may choose to read on most any day.  Here are a couple of examples. 

• If the Republicans limit Medicaide funding by capping it or restricting it in anyway, the Democrats say that will drive up costs for everyone else. 
  
• If the individual mandate is dropped, healthy young people will buy insurance and that will drive up costs for everyone else. 

So, recent history shows costs have continued to rise WITH the PPACA provisions and now it seems if those provisions are removed, costs will go up as a result of those roll backs.  Costs are predicted to go up no matter what the rules are ... Right?  Right!

Here is why by example.

You like ice cream so you just want it delivered to your door like pizza.  In fact, a dream would be to get hot pizza AND fresh ice cream delivered every night for a good price.  First you start out driving around in your car to find the favorites, then price becomes and issue, then you get sensitive to the time and effort that takes and you hire a service to do the shopping and delivery for you.  You agree to pay the service each month, they agreed to deliver hot pizza and fresh ice cream at a fixed price.  Their price is good at first.  Then they say that your house is in a higher cost area so, they add a fee per delivery and really gouge you if you do not take the pizza combos and ice cream flavors that are on "special" each day.  Then they start saying that you have deliveries from the places THEY choose and it costs more is may not even include your favorites.  The price just keeps going and going and going ... UP.

Well it is really easy to blame the delivery provider.  They are the one that you actually pay, yet you have left it to them to choose which pizza and ice cream parlors to include.  What is that based on?  Oh, you forgot to ask and now since you have "hired" this chosing activity out, what questions should be asked or even can be asked are lost.  You just got lazy.

Well, that is the problem.  We got lazy.  Everyday I speak to people that still believe that having insurance makes things free or some version of free.  Really?  That is NOT insurance! 

The real problem is the total lack of transparency that we blindly accept everyday.  Here is one blatant and regularly occurring example.  Remember the Epipen issue last summer.  Well, in an interview with ABC prime time news, the company representative said that the costs for this life saving and patented drug is "due to the increased deductibles in many plans today".  Wait a minute.  What in the world does that mean?  Well, here is part of it.  When I buy my Epipen(s) my insurance is NOT used because paying cash saves me over $100.  That is right.  On my plan, at my pharmacy, I am charged MORE IF my deductible is not met.  So, that means their are three prices for Epipen.  In decreasing order, they are ... High Deductible Insured person (before deductible met) pays $650.  Cash (non-insured person) pays $500.  After Deductible met the price drops to $300.  Really?  Really!

So, who is really setting the price for pizza and ice cream in our example?  Certainly the delivery company (insurance company) benefits by the higher prices ... 20% margin on $100 is less net dollars than 20% on $10.  So, when the workload is the same (number of claims processed) and the dollar volume takes a huge leap, profits go up.  Simple math.  But, WHY does the dollar volume (prices) increase?  Because they can!  My gosh, what are we still missing?  NOBODY talks about this part AT ALL. 

Washington University did a study a few years ago about the price of a hip replacement surgery on a 50 year old female without insurance.  Using the SAME service codes, the survey showed that in the 150 hospitals checked ... from big name brands to small regional providers ... the price for those specific codes and specific patient ranged from just over $25,000 to more than $150,000!  Fully 1/3 of those in the survey COULD not even provide estimates because their billing structure was either too complicated, too private or crazy to provide an estimate.  Well ... there is the real root of the problem!

In addition, malpractice costs for both professionals and facilities are totally out of control because Congress looks away from Tort Reform to cap millions in claims because the coffee may be too hot.  Come on.  This is NOT simple, but it is plain what needs to happen.  Let's get started.  That is my next post.

It seems that the job of "repeal and replace" was too large a task to get done by a handful of legislators and proves that simply being against something is just not enough ... you have to be "for" something to make changes stick.

Certainly my focus is not to stoke anyone's political passions but rather to point out that the "mess" and confusion of where the ACA may be right now is a function of the lack of function of the Federal effort to control the health insurance market.  It is a market after all and is not very responsive to control. In fact, uncertainty and excessive rules just raise costs and premium paid without providing more care but rather less care per dollar paid.

Imagine building a road without consideration of topography.  That is what the ACA did and it started building into a swamp and as the traffic poured onto the new asphalt, it began to crack and buckle.  More asphalt was ordered because surely that would make it better and the road continued to sink just like more money only pays premium but does not provide care. 

Who is at fault?  Everyone. 
Why?  Because all of us see a little bit of the problem and each of us refuse to "fess up" and fix it. 

Why does a pharmacy have so many prices for the same prescription?  Why is the price higher for a high deductible insured person versus a cash customer?  Why are the prices so hard to compare?  Why are prices for care so varied as well?  Why are providers still "capitated"?  I could ask a million questions, each cause some amount of waste and confusion in our current situation and keep premium costs on the increase.

Let's just get back to basics.  Premium should pay for risk and we should pay for care.  Simple.  I don't know how much my insurance should be but my risk is probably about 100k and so that would equal something closer to my auto insurance per month instead of a fat mortgage.  An office visit should be about $40 for the 45 seconds that a doc spends listening to my symptoms and for a PA the same but maybe 2 minutes instead.  Simple is always better. 

An employer or plan administrator has 44 days to provide an election notice from the last date covered as an active employee (not under a formal or informal severance agreement). Then the qualified beneficiary has 60 days to elect COBRA. Once the qualified beneficiary has elected COBRA he or she has another 45 days to pay the initial premium.  Remember that COBRA is a right to tag along with a group contract, not a license for the plan sponsor to cover those that are not included in the contract definitions.  Those covered MUST be active at work (or a dependent), on COBRA or FMLA.  That's it!  Notice "severance deals" are NOT included.

So what happens during these timeframes?

During the election period it is up to each employer to decide whether to remove the qualified beneficiary from the plan when coverage is lost, or allow the qualified beneficiary continue on the plan. If removed from the plan, COBRA coverage could be pending until payment is received. The employer is then responsible to reinstate coverage back to the original loss-of-coverage date once payment is received. Before an employer chooses to keep the qualified beneficiary on the health plan during these grace periods, there are a few aspects to contemplate. If a group health plan is insured, how far back will the insurer allow the retroactive removal of a qualified beneficiary by the employer? Some insurers may not allow the removal to go back more than 60 days. If you add up the three time frames allowed (which would be 44 + 60 + 45) you end up with almost a five month period. If an insurer allows the removal back to only 60 days, the employer will be self-insuring the period that the insurer does not allow. Consequently, it is recommended that the qualified beneficiary be removed from the plan and only reinstated if payment is received. In the case that an employer desires to keep a qualified beneficiary on the plan, it should review the process with the insurer. Upon approval by the insurer to retroactively remove a qualified beneficiary to the original loss-of-coverage date when an election and payment has failed to be received, it is prudent for the employer to obtain confirmation in writing.

How about monthly grace periods for premium payment? This period has to be at least 30 days and most employers hold it to that timeframe. So, if the qualified beneficiary does not pay the monthly premium within the 30 day grace period, the insurer will allow retro-active removal from the plan without any issues. In some cases, insurers will remove qualified beneficiaries each month until premium has been received. Upon receipt of payment, a plan must promptly reinstate coverage; thereby the qualified beneficiary receives coverage for the entire month. This can be a very complicated process to administrate because when a qualified beneficiary is removed each month, claims are denied. As soon as the premium payment is received, however, claims have to be processed.

What about denied claims that a qualified beneficiary has during these grace periods? First of all, claims during the election period or grace period could potentially be denied. Once the qualified beneficiary pays for COBRA coverage, the denied claims can be resubmitted upon reinstatement onto the plan.

What is the correct response when someone contacts the employer or plan administrator about health plan status during these grace periods? According to the IRS final COBRA regulations, a complete response is required to a health care provider’s request regarding a qualified beneficiary’s coverage status during the election and initial payment periods. This means that just a covered or a not covered response will not suffice. To respond to a coverage pending election, the employer can indicate that a qualified beneficiary is removed from the plan during the 60-day election period and then reinstated once COBRA is elected and first payment is received. It is wise to inform the provider’s office of this status, as well as to let them know the qualified beneficiary is not currently on the plan but will have coverage, retroactively, once COBRA coverage is elected and the first payment is received. This notification should include specific dates of election period and premium due dates.

So what is the response if the qualified beneficiary is not removed during the election/payment period? This other option is appropriate if the plan allows coverage during the election period but cancels it retroactively if COBRA is not elected. In this case, the plan or administrator is required to notify a provider that the qualified beneficiary is covered but is subject to retroactive termination if COBRA coverage is not elected and the appropriate premiums are not paid. As part of the information given to the provider, specific election and payment dates should be included.

To avoid liability or litigation, accurate information should be given to a health care provider requesting a qualified beneficiary’s coverage status. Because COBRA is an employer law, the burden of liability may belong to the employer rather than an insurer. Any inquiries regarding health coverage should be handled by the employer or plan administrator rather than the insurer.

Remember one final factor. Unlike criminal law where the test is "beyond a reasonable doubt" and civil law where decisions are based on "the preponderance of evidence", this is employment law. The basis is much different. The employer is presumed guilty and has the full weight of proving to an employee (current or former) that the employer "did not do" whatever is alleged by the charging party. This is true in EEOC, DOL and FLSA proceedings ... not just COBRA.

Executive Orders related to the PPACA (Patient Protection and Affordable Care Act) began being circulated last Saturday.  More information is due to be released when the Secretary of Health and Human Services (HHS) is confirmed ... but not yet.
No-one yet knows how long the law will remain in effect. However it was made clear in the Executive Order that it is “Imperative for the executive branch to ensure that the law is being efficiently implemented”. It also stated that all executive departments should “take all actions consistent with the law to minimize the unwarranted economic and regulatory burdens of the ACA”. The order then mentions that there should be an effort to afford states more flexibility and control in order to create a more open healthcare market.
After the release of the Executive Order, many are still trying to determine what this all means. What will happen to the individual mandate? What does this mean for insurers? Will employers still have to comply with IRC section 6056? What about the exchanges? Before addressing these things it is imperative to first review some key language from the Executive Order itself.
Sec. 2. To the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.
Sec. 3. To the maximum extent permitted by law, the Secretary and the heads of all other executive departments and agencies with authorities and responsibilities under the Act, shall exercise all authority and discretion available to them to provide greater flexibility to States and cooperate with them in implementing healthcare programs.
Sec. 4. To the maximum extent permitted by law, the head of each department or agency with responsibilities relating to healthcare or health insurance shall encourage the development of a free and open market in interstate commerce for the offering of healthcare services and health insurance, with the goal of achieving and preserving maximum options for patients and consumers.
Sec. 5. To the extent that carrying out the directives in this order would require revision of regulations issued through notice-and-comment rulemaking, the heads of agencies shall comply with the Administrative Procedure Act and other applicable statutes in considering or promulgating such regulatory revisions.
If any action is to be taken regarding loosening any rules this will most likely require new proposed regulations. This in turn is followed by a review and implementation period. On top of this the Democratic Party is not planning on “playing nice”. To sum it all up any changes will inevitably take some time. These things typically take a while (possibly years) even when they are noncontroversial.Many are wondering what this means for the employer mandate and therefore employer reporting. So far there has been no word specifically on this. One thing is for sure, until the Treasury Department announces something different the current law of the land still stands. This means that all employers should be prepared to furnish 1095Cs to employees by the end of February and also plan to have these filed with the IRS by the March deadlines.

Many errors are being noted as a result of the e-files loaded through the new AIR IRS system. We also expect error reports for paper filers as well. Errors are common it seems as all the TPA's that we have spoken too as well as the IRS confirm that the AIR system's validation has many faults and often the IRS data itself is out of date or just plain wrong.

The "Good Faith Filing Standard" which is the standard for 2015 ACA Reporting means that errors that are noted should be corrected if possible and obvious but NO deadline to do so has been communicated.  If there are errors in the paper or e-file, Source documents need to be reviewed and placed in good order.  Source documents would be the I-9 Form and supporting documents, original insurance enrollment forms completed by the employee ... etc. Again, just because there is an error, does NOT mean that records that were used for reporting are necessarily wrong ... just different from what the AIR system has to match to the record loaded. There is NO guidance on what steps to take IF the information sent to the IRS matches current employer records. "Honest" differences could be incomplete names changes after marriage or divorce, hyphenated last names, dates of birth transposed, name spelling, etc. Problems could occur when employees have provided fake ID's including "bought" Social Security Cards.

Remember one more thing. We are dealing with the IRS and a new area of employment law. Under the theory of American employment law, the employer is considered "guilty" and has the burden of proof for innocence. That is precisely why good documentation is so very important.

Employees that were offered "Affordable Coverage" by their employer were NOT supposed to get subsidized plans from the Marketplace. Many did for the simple economics that the standard for "affordability" for employers was 9.5% for SINGLE coverage and the Marketplace subsidy is for any tier up to and including family coverage ... on the Silver Plan level. Practically speaking, many employees were faced with the cost of Single Coverage that was offered by their employer that was "affordable" costing about the same as Marketplace family premium IF it was subsidized. All the employee had to do was claim that the employer coverage was "not affordable". In these cases, at least initially, the employer is most likely to get a penalty letter from the IRS because an employee listed on the ACA filing as having been offered "affordable coverage" received a subsidy ... and the employer must pay a penalty. Ouch. Employers will have 90 days to appeal and having proof that the Marketplace letters were sent to the employees will be paramount in getting this penalty abated.

Thanks for trusting our staff to assist with your compliance efforts.