In recognition of the changing circumstances related to the COVID-19 pandemic, the EEOC has updated its guidance around conducting testing for on-site employees. Employers covered by the Americans with Disabilities Act must assess whether the current workplace circumstances within their organization justify COVID-19 testing, if they are continuing to test.In determining if they meet the “business necessity” standard for implementing screenings, employers will need to review all relevant facts in light of their current policies and procedures. The guidance provides the following factors for employers to consider:Degree to which breakthrough infections are possible for employees who are “up to date” on vaccinationsThe possible severity of the illness from the current variantThe level of community transmissionThe vaccination status of employeesWhat types of contacts employees may have with others in the workplace; andThe potential impact on operations if an employee enters with COVID-19Many employers have already shifted their COVID-19 policies and procedures…

Ahead of the close of the 117th U.S. Congress, the House of Representatives, with a vote of 315 – 109, quietly passed the Speak Out Act (“The Act”). President Biden signed the bill a few weeks later. Under the new law, nondisclosure and non-disparagement clauses related to allegations of sexual harassment and/or sexual assault that were entered into prior to a dispute are unenforceable. The goal of the Act is to combat sexual harassment and assault in the workplace by ensuring victims feel empowered to come forward. The Act states, “in order to combat sexual harassment and assault, it is essential that victims and survivors have the freedom to report and publicly disclose their abuse.” The Act only applies to contracts that were signed prior to the dispute and does not account for other workplace misconduct, e.g., race and age discrimination.Previously, the federal government enacted another law addressing similar concerns.…

President Biden last week signed the Continuing Appropriations Act, 2023 (CAA 23) to provide funding for the federal government through the current fiscal year. But employers also should know there were some critical benefits-related provisions tucked into CAA 23. Though many of the benefits sections of CAA 23 related to qualified retirement plans, the law also provides some relief to employers with high deductible health plans (HDHPs) that provide telehealth services on a pre-deductible basis. CAA 23 will extend recent COVID-19 guidance that permits certain telehealth and remote service benefits to be provided on a first-dollar basis under an HDHP. CAA 23 will allow participants to receive such benefits without disqualifying them from being eligible for health savings account (HSA) contributions. Telehealth Coverage and HSAs General HSA eligibility rules prohibit anyone who has group health coverage other than under an HDHP – such as first-dollar coverage for telehealth services --…

The Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments) last week issued an FAQ that relieved filing entities from the December 27, 2022, deadline for providing certain information.The Departments understood many plans and carriers faced significant operational challenges in complying with the reporting requirements, including arranging and coordinating a plan’s submission across multiple reporting entities. The Departments also noted they were extending the deadline to allow filers to accurately classify, compile, and validate required submission data. The Departments will consider a plan or issuer to be compliant if they make a good faith submission of 2020 and 2021 data on or before January 31, 2023.Many interested parties also had expressed fears that the new and complex reporting requirements would inevitably lead to errors and other failures despite good faith efforts to comply.  So, for the 2020 and 2021 data submissions that were to have been…

Section 204 of the 2021 Consolidated Appropriations Act (CAA) outlined several requirements for group health plans and health insurers aimed at targeting rising prescription drug costs. In an effort to bolster transparency, the CAA created new obligations for plans to report specific prescription drug data to The Centers for Medicare & Medicaid Services (CMS). Effective December 27, 2022, employer health plans will need to report certain information to the federal government related to prescription drug and health plan costs. In addition to reporting general information regarding the plan or coverage, plan and issuers must also prepare to provide, among other things, detailed information regarding the 50 most frequently dispensed drugs, 50 most costly and 50 prescription drugs with the greatest increase in plan expenditures (RxDC reporting). The provisions also require the Departments to issue biannual reports on prescription drug reimbursements under group health plans, prescription drug pricing trends and the…

Cafeteria plans are governed by IRS Code Section 125 and allow employers to help employees pay for expenses such as health insurance with pre-tax dollars. Employees can choose between a taxable benefit (such as cash) and two or more specified pre-tax qualified benefits (health insurance, for example). Employees can select the benefits they want, much like an individual standing in a cafeteria line. IRS rules limit the types of benefits that can be offered through a cafeteria plan to:Coverage under an accident or health plan (which can include traditional health insurance, health maintenance organizations (HMOs), self-insured medical reimbursement plans, dental, vision, andHealth flexible spending arrangements (HFSAs)Dependent care assistance benefits (DCAPs)Group term life insurancePaid time off, which allows employees the opportunity to buy or sell paid time off days401(k) contributions (subject to certain restrictions)Adoption assistance benefitsHealth savings accounts (HSAs)Employers cannot offer scholarships, group term life insurance for non-employees, transportation and other fringe…

Temporary Flexibilities for Remote Document Examination for Form I-9 Extended Again In March 2020, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) instituted a temporary policy which allowed employers with a remote workforce to defer physical presence requirements associated with Form I-9 and Section 274A of the Immigration and Nationality Act. Initially applicable only to employers with an entirely remote workforce, the flexibilities were extended in April 2021 to include all employers who hire remote employees on or after April 1, 2021, if such employees were hired to exclusively work remote due to the employer’s COVID-19 policy. Under this guidance, exclusively remote employees are exempt from the physical inspection requirements until non-remote employment is undertaken, or new guidance around the requirements has been issued. Once normal operations resume or the National Emergency ends, employees that were onboarded using remote verification will need to report to…

Published October 13, 2022, The Department of Treasury released finalized regulations that make the premium tax credit (PTC) for Marketplace health coverage available to more individuals starting in 2023. Under the Affordable Care Act (ACA) regulations, employer-based health insurance is deemed “affordable” if the employee’s contribution for self-only coverage does not exceed the affordability threshold in a given year (9.12% in 2023). Those who do not have access to affordable employer-based coverage may qualify for a PTC through the healthcare marketplace. As a result of the previous definition of affordability, an estimated 5 million people fell into what is known as the “family glitch,” which prevented them from receiving a subsidy through the marketplace as the determination of whether the coverage met the affordability threshold is focused on self-only coverage, not family. Under the new rule, affordability of employer-sponsored coverage for an employee’s spouse or tax dependents will be based…

Under the Affordable Care Act (ACA) transparency-in-coverage (TiC) rules and provisions of the Consolidated Appropriations Act, 2021 (CAA), group health plan sponsors must both disclose and report detailed information regarding a plan’s prescription drug coverage and costs. There is significant overlap under the two sets of disclosure rules, which has led to confusion regarding compliance. The confusion is even greater since the rules impose two required components for prescription drug cost disclosure – an annual report (Report) to the Centers for Medicare & Medicaid Services (CMS) and a mandatory machine-readable file (MRF). The Report deadline was originally set for last year, but the Departments that enforce the rules delayed the deadline until December 27, 2022. Also, because there is significant overlap in the rules regarding prescription drug costs, the Departments delayed the prescription drug MRF requirement indefinitely pending further regulation and guidance. Recent CMS guidance provided some technical clarifications to…

The U.S. Departments of Health and Human Services, Labor, and the Treasury (the “Departments”) recently released final rules regarding the No Surprises Act. The rules specifically address required independent dispute resolution (IDR) of certain claims and expenses and finalize prior interim final rules relating to information that group health plans must disclose. Federal IDR Process The No Surprises Act required regulators to develop an IDR process to resolve conflicts between payers and providers regarding out-of-network expense amounts. Any disputes unresolved after 30 days of negotiating can be referred by either side to binding arbitration from a certified IDR entity. The IDR entity will consider the qualified payment amount (QPA) – the insurance plan's median contracted rate for the same or similar service in an area – and other relevant submitted information, and then select one side’s suggested payment amount. Under interim final rules issued in October 2021, certified IDR entities…

Per the Kaiser Family Foundation, an estimated 8.2 million Americans will be due rebates for 2022. Further the analysis states that health insurers are expected to pay a total of $1 billion to policyholders.  In light of this, plan sponsors should be prepared to handle any Medical Loss Ratio (MLR) rebates they receive from their insurance issuer in a manner that aligns with applicable rules. The Affordable Care Act (ACA) outlines the requirements private health insurance issuers must follow, including obligations related to premium spending. The ACA requires health insurers to spend at least 80% to 85%, depending on the size of the market, of premium dollars on medical care. The remaining 20% to 15% is reserved for administration, marketing expenses and profit. If these requirements are not met, plans are required to provide annual rebates to the policyholders, the Medical Loss Ratio (MLR) Rebates. These refunds or rebates are…

The Biden Administration’s FY 2023 proposed budget requests increased funds to enforce the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). Specifically, the budget would allot $125 million to the states for MHPAEA enforcement. Additionally, President Biden requested an additional $275 million for the Department of Labor (DOL) to perform MHPAEA audits of group health plans over the course of the next 10 years. The proposed budget would also grant authority to the DOL to turn enforcement efforts toward the vendors who design and apply quantitative and non-quantitative treatment limitations (QTL and NQTL) for self-funded group health plans. Currently, the DOL’s authority is limited to the group plan sponsors under ERISA. This shift would allow the DOL to zero in on the parties responsible for the creation and administration of the play provisions, which are typically the plan’s carriers, instead of limiting the audit to the plan sponsor,…

On August 16, 2022, President Biden signed the long-awaited Inflation Reduction Act which aims to reduce rising health care costs and greenhouse gas emissions, as well as raise taxes on corporations. The President’s signature comes after the House and Senate passed the bill last week along party lines following much debate and a deal negotiated between Senators Charles Schumer and Joe Manchin. Within the $430 billion dollar legislation there are several health care related provisions which target the prescription drug costs under Medicare, plan subsidies through the Marketplace, and as a result, a likely expansion for individual coverage health reimbursement arrangements (ICHRAs). A breakdown of the health care provisions is below. For a summary of provisions see here. Medicare Part D Prescription Drug coverage: Cost-sharing for insulin will be capped at $35 per month for Medicare Part D participants, and manufacturers will be required to pay Medicare a rebate if…

Around 30 million adults in the U.S. deal with some form of hearing loss, but only an estimated 1 in 5 have addressed the issue with the use of a hearing assistance device. On August 16, 2022, the U.S. Food and Drug Administration (FDA) issued a final rule that would allow Americans to access hearing aids over-the-counter (OTC). The final rule creates a new category for OTC hearing aids, which will allow individuals with perceived mild to moderate hearing loss to purchase hearing aids directly in-store or online without prescription, medical exam or fitting by an audiologist. Prior to this, insurance coverage for hearing aids has been limited, with Medicare offering no coverage for individuals. This final rule is a result of legislation passed in 2017 by Congress (FDA Reauthorization Act of 2017) which required the FDA to create a category of OTC hearing aids and an Executive Order signed…

The IRS announced a decrease in the ACA Affordability Contribution Rate from 9.61 in 2022 to 9.12 percent for the 2023 plan year, the most significant decrease since the ACA’s commencement. Under the ACA, Applicable Large Employers (ALEs), employers with 50 or more full time and/or full-time equivalent employees, are required to offer affordable minimum value coverage to all full-time employees and their dependents. The contribution percentage is used to determine whether the employer-sponsored health coverage is “affordable” under the ACA’s employer shared responsibility provisions. A plan will be considered affordable under the ACA if the employee’s contribution level for self-only coverage does not exceed the specified percentage of the employee’s household income. Failure to offer affordable coverage may result in employer shared responsibility penalties, which can be substantial. The IRS recognizes that it is difficult for an employer to determine an employee’s household income, so employers are able to…

The summer has seen a flurry of compliance-related activity, most notably the landmark decision issued by the U.S. Supreme Court to overturn Roe v. Wade. As we move into the second half of the 2022 employee benefits compliance calendar, there are a number of important issues to note.SCOTUS OVERTURNS ROE V. WADE; EMPLOYERS WEIGH BENEFITS RESPONSESAs forecast in a leaked draft opinion in May, the U. S. Supreme Court officially overturned Roe v. Wade on June 24. The official opinion specifically held that the U.S. Constitution does not confer a right to abortion; Roe and Casey (the two landmark abortion rights cases) are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. Thus, each state will now have autonomy to decide how it will handle abortion rights within – and potentially beyond – its borders.Employers have been weighing what, if anything, they will do regarding abortion and abortion-related services and expenses under…

July 1, 2022, marks the effective date for plans and issuers to begin posting two Machine-Readable Files (MRF) links to a public website so individuals can readily learn their in-network group health plan costs, as well as historical paid amounts for out-of-network services. Ahead of this deadline, plans and issuers should have communicated with plan sponsors the location of the link and how they can access the information associated with the link. Each MRF must use a non-proprietary, open format to be identified in technical implementation guidance, i.e., JSON, XML, etc. Carriers providing files in PDF format are not in compliance with the required standards.Below are some highlights and next steps for plan sponsors that may be helpful as they continue to navigate this new requirement and make efforts to ensure compliance.Purpose and IntentThe machine-readable files requirement is part of a broader effort to achieve overall pricing transparency in healthcare.…

Employers likely have questions about abortion-related employment protections and healthcare benefits after Friday’s SCOTUS controversial decision that overturned Roe v. Wade. Given the ruling, people in states with strict abortion limitations may end up traveling to other states to receive abortion-related care. Can employees take job-protected leave to obtain such services? What other rights might employees have under federal employment laws? Here are a few points you should keep in mind in light of the June 24 Dobbs v. Jackson Women’s Health Organization decision. Anti-Discrimination Laws Protect Abortion-Related Decisions Employers should understand the workplace protections employees have under existing federal anti-discrimination laws and how they apply to an employee’s decision whether to have an abortion. The Interplay of Employment Discrimination Statutes Title VII of the Civil Rights Act of 1964 bans employment discrimination based on color, national origin, race, religion, and sex. Additionally, in 1978, Congress enacted the Pregnancy Discrimination…

In a 7-2 decision, the U.S. Supreme Court has issued its opinion in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., ruling in favor of Marietta Memorial Hospital's health plan. In the Court's opinion, drafted by Justice Brett Kavanaugh, the Court held the plan did not violate a federal statute which obligates private insurers to cover the first 30 months of dialysis following a patient's end-stage renal disease diagnosis. In the opinion, which reversed the judgment of the U.S. Court of Appeals for the Sixth Circuit, Justice Kavanaugh opined, "The question in this case is whether a group health plan that provides limited benefits for outpatient dialysis - but does so uniformly for all plan participants - violates the Medicare Secondary Payer statute. We agree with petitioner Marietta and the United States as amicus curiae that the answer is no."In 2018, DaVita, Inc. sued Marietta Memorial Hospital’s health…