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New FAQs Address Issues Related to Contraceptive Coverage under Group Health Plans

The federal Treasury, DOL, and HHS (collectively, the “Agencies”) jointly issued a new set of FAQs to address various issues regarding the requirement for most employer-provided and other applicable group health plans to cover contraceptives without cost-sharing under the preventive care mandate of the Affordable Care Act (the “Contraceptive Coverage Mandate”). In particular, the FAQs are intended to (i) respond to reports that individuals continue to experience difficulty accessing contraceptive coverage without cost sharing; (ii) clarify application of the Contraceptive Coverage Mandate to fertility awareness-based methods and emergency contraceptives; and (iii) address the preemption of state law by the Contraceptive Coverage Mandate.  Specific issues addressed in the FAQs include the following:  The requirement for plans to cover items and services that are integral to the furnishing of a recommended preventive service, such as anesthesia necessary for a tubal ligation procedure; The requirement for a plan to cover, without cost-sharing, FDA-approved… Continue Reading

Reminder to Review Health Plan Subrogation and Reimbursement Language Before It’s Too Late

A recent case from the U.S. Court of Appeals for the Ninth Circuit serves as a reminder to employers to review the subrogation and reimbursement language in their group health plan documents. In this case, a motion picture industry health plan provided that a participant must reimburse the plan from any amount recovered from a third party who was responsible for the injury. If a participant fails to reimburse the plan from a third-party recovery, under the terms of the plan, the amount of unreimbursed benefit payments is deducted from future benefit payments made on behalf of such participant by the plan. In accordance with the plan’s provisions, when one of the plan’s participants failed to reimburse the plan from a third-party recovery, the plan began deducting the unreimbursed amount from future benefit payments. The participant and other covered family members sued. A federal district court granted summary judgment in… Continue Reading

Department of Labor Releases Spring 2022 Regulatory Agenda

The DOL recently released its Spring Regulatory Agenda, and it contains several important retirement and welfare plan initiatives for this year. Below is a summary of some of the material items that plan sponsors should be aware of, along with the DOL’s proposed schedule of rulemaking:  Final Pension Benefit Statement Lifetime Illustrations Rule (Final Rule scheduled for August 2022). Note: Under the DOL’s previously issued Interim Final Rule, the inclusion of lifetime illustrations once per year on pension benefit statements became effective in June 2022. Revised procedures for granting prohibited transaction exemptions (the DOL is currently reviewing comments from its Proposed Rule from March 2022). Amendment and restatement of the DOL’s Voluntary Fiduciary Correction Program to expand the scope of eligible transactions and to streamline correction procedures (Interim Final Rule scheduled for July 2022). Amendment of the regulatory definition of the term “fiduciary” under ERISA for those persons who render investment… Continue Reading

Post-Dobbs Subpoenas for Protected Health Information Require Special Scrutiny under HIPAA

The landscape of laws governing the provision of abortion-related services, and coverage of such services under employer-sponsored group health plans, is rapidly changing in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. Prior to Dobbs, numerous states had enacted “trigger laws” prohibiting or restricting abortions, that were effectuated by Dobbs. Other states may now pass similar anti-abortion laws. Some states, such as Texas, have laws in effect that impose potential liability on parties that “aid or abet” abortions. As a result of the Dobbs decision and the fact that many state laws regulating abortions are now effective, compliance and enforcement investigations and lawsuits may arise. For example, plan sponsors of group health plans that provide coverage for abortion services, such as reimbursements for travel expenses incurred to obtain an out-of-state abortion (“Abortion Services”), could find themselves receiving subpoenas… Continue Reading

U.S. Supreme Court Rules Limited Coverage for Dialysis Does Not Violate Medicare Secondary Payer Statute

On June 21, 2022, the U.S. Supreme Court issued its decision in Marietta Memorial Hospital Health Benefit Plan v. DaVita Inc. In this case, an employer-sponsored group health plan paid limited benefits for outpatient dialysis, and DaVita Inc. (the dialysis provider) sued the plan for violating the Medicare Secondary Payer statute (the “MSP Statute”). Generally, the MSP Statute prohibits an employer-sponsored group health plan from (i) differentiating in its benefits coverage between individuals having end stage renal disease (“ESRD”) and other individuals, and (ii) taking into account that an individual is entitled to or eligible for Medicare due to ESRD. For individuals who have ESRD, the primary treatment is renal dialysis, which is very expensive. The U.S. Court of Appeals for the Sixth Circuit previously ruled that the MSP Statute permits disparate-impact liability and that the limited payments for dialysis treatment had a disparate impact on individuals with ESRD. However, in… Continue Reading

The Reversal of Roe v. Wade: What ‘s Next For Your Group Health Plan?

On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization. This decision overturned the Court’s prior decisions in Roe v. Wade and Planned Parenthood v. Casey, by holding that the U.S. Constitution does not confer any right to an abortion and returning the authority to regulate abortion back to the states. Some employer-sponsored group health plans provide coverage for abortion procedures and related expenses. The full impact of Dobbs on such coverage is unknown at this time, pending future legal developments in the states, guidance from the federal government, and the results of new court cases which will likely be filed in response to this decision. In the meantime, the following considerations may be relevant for employers that sponsor a group health plan: The application to a group health plan of any new or revised abortion-related laws that are passed in the… Continue Reading

Case Serves as Reminder to Include Limitations Period in Denial Letters

A recent case from the U.S. District Court for the District of Utah serves as a useful reminder to sponsors of employee group health plans that benefits denial letters should contain the plan’s time limit for filing a lawsuit. In that case, the plan had a 180-day limitation period for bringing legal action, and the plaintiff filed suit after that deadline. The court noted that a number of other courts have interpreted ERISA regulations to require denial letters to include any plan-imposed time limit for filing suit. We previously discussed two such cases on our blog here and here. Finding the plan’s limitation period was unenforceable because it was not included in the final claim denial letter, the court applied the most closely analogous statute of limitations under state law. Employers are reminded to review their template denial letters to ensure the plan’s time limit for filing a lawsuit is… Continue Reading

New Legislation Extends Relief for Telehealth Coverage Prior to Satisfying HDHP Deductible

The Consolidated Appropriations Act of 2022 (“CAA”), enacted on March 15, 2022, extends the optional relief previously provided under the CARES Act regarding the ability of a high deductible health plan (“HDHP”) to cover telehealth services without application of the deductible. Under the CARES Act relief, which applied to plan years beginning on or before December 31, 2021, a participant in an HDHP that adopted the relief could obtain pre-deductible telehealth services without compromising his or her ability to make contributions, or have contributions made, to a health savings account. See our prior blog post about the CARES Act relief here. The extension of the telehealth relief under the CAA is not retroactive to January 1, 2022, but instead is effective only for months beginning after March 31, 2022, and before January 1, 2023, thus creating a gap in the relief for calendar year plans (and certain non-calendar year plans)… Continue Reading

New FAQs Address Interaction of No Surprises Act’s Federal IDR Process with DOL Claims Regulations

A set of FAQs recently issued by HHS’s Centers for Medicare and Medicaid Services provide additional guidance regarding the federal independent dispute resolution process (“Federal IDR Process”) that was established under the “No Surprises Act” (the “Act”), enacted as part of the Consolidated Appropriations Act of 2021. The purpose of the Federal IDR Process is to resolve certain types of payment disputes between group health plans or health insurance issuers (each, a “Plan”) and out-of-network health care providers, facilities, and providers of air ambulance services (collectively, “OON Providers”). These disputes concern the out-of-network rates that Plans will pay for emergency, air ambulance, and certain other services subject to the Act that are furnished to plan participants by OON Providers. The Federal IDR Process generally applies to Plans effective for plan (or policy) years beginning on or after January 1, 2022, and to OON Providers beginning on January 1, 2022.  Among… Continue Reading

Reminder to Check Your Form 1094-C Before It’s Filed with IRS

Applicable large employers have until February 28th (March 31st if filed electronically) to submit their Forms 1094-C and 1095-C to the IRS for compliance with the ACA. The Form 1094-C is used, in part, to report to the IRS whether the employer has offered health coverage to at least 95% of its full-time employees. In our experience, most employers intend to meet this 95% threshold in order to avoid the extremely large penalty that otherwise is imposed under the ACA. However, some employers are reporting they did NOT meet this 95% threshold on their Forms 1094-C, even though they did, usually as a result of an error made by a service provider completing the form. This results in the IRS sending a notice of a proposed assessment of the employer shared responsibility penalty under the ACA. If an employer does not timely respond to the notice, the IRS will send… Continue Reading

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