Compliance Issues to Keep in Mind 2023
Benefits compliance can be challenging. The rules seem to be ever-changing and implementation timelines can be over an extended period of time making it hard to remember what needs to happen and by when. With that in mind, there are three compliance priorities that employers should keep in focus if they haven’t taken action already. Those include: the end of both the COVID-19 National Emergency and Public Health Emergency, Transparency Requirements, and Mental Health Parity Compliance.
The End of the COVID-19 Emergencies
The Biden administration announced a coordinated end to both the COVID-19 National Emergency and Public Health Emergency scheduled for May 11th, 2023. This means that due to the end of the Public Health Emergency, among other things:
- Plans will no longer be required to cover COVID-19 diagnostic testing and related services at 100%; and
- Non-grandfathered group health plans will no longer be required to cover out-of-network vaccination at 100%.
Insurers will dictate plan changes for insured plans, but self-funded plans can choose to be more generous than what the law requires. Self-funded employers should review plan language and make any plan design adjustments accordingly.
The end of the National Emergency signals the end of the Outbreak Period (the period ending 60 days after the end of the National Emergency). The National Emergency extended the timeframe participants had to elect and pay for COBRA, make election changes due to HIPAA special enrollment events, and file an ERISA claim or appeal. These extensions end when the Outbreak Period is over or, if earlier, after an individual has been eligible for a specific deadline extension for one year.
All employers who made adjustments to COBRA notices in response to the National Emergency, should review their COBRA notices and remove language applicable to the extension of time.
Transparency Requirements
Many plans have provided or are continuing to provide information for their health plan vendors to submit RxDC reporting due on June 1st related to the cost of prescription drug coverage and its impact on overall health plan cost. The Transparency in Coverage and Consolidated Appropriations Act (2021) transparency rules have a couple of additional upcoming deadlines that plans should not lose sight of including:
- Gag clause attestations due by December 31st, 2023, affirming that the health plan or issuer has not entered into contracts that would restrict the plan or issuer from providing, accessing or sharing certain information about provider price and quality and deidentified claims; and
- The self-service price comparison tool must be expanded to roll out of rate information for all services covered under the plan by January 1, 2024.
For fully-insured plans, the responsibility to submit a gag clause attestation is on both the plan sponsor and the insurer; however, if the insurer submits on behalf of the plan, the plan sponsor will be deemed to have satisfied its reporting requirements. Self-funded plans may delegate responsibility to their claims administrator, but they should do so in writing with best practice being to ensure there is language holding vendors responsible in the administrative services contract.
Mental Health Parity Compliance
Among the provisions of the Consolidated Appropriations Act (2021) is the requirement for plans to demonstrate compliance with the Mental Health Parity and Addiction Equity Act by conducting an analysis that documents and illustrates that the nonquantitative treatment limitations applied to mental health and substance abuse benefits under a plan are no more restrictive than those applied to medical and surgical benefits. Many plans have been slow to conduct a comparative analysis due to a lack of understanding of how to approach analyzing plan provisions and the expense of hiring a vendor or counsel to conduct the analysis. Mental Health Parity compliance remains a priority enforcement area for the Biden Administration for 2023 and the hope is that there will be additional guidance clarifying the role of the plan and the role of vendors that promotes compliance forthcoming.
Similar to the transparency rules above, the responsibility is on the insurer when a plan is fully-insured but it is still wise for a plan sponsor to confirm the insurer’s compliance. Self-funded plans should request information from their vendors to conduct a comparative analysis. They can engage assistance in completing the analysis from a vendor or legal counsel, but ultimate responsibility lies with the plan sponsor.
Please reach out to your HORAN representative with additional questions at 800.544.8306.
The information contained in this document is informational only and is not intended as, nor should it be construed as, legal or accounting advice. Neither HORAN nor its consultants provide legal, tax nor accounting advice of any kind. We make no legal representation, nor do we take legal responsibility of any kind regarding regulatory compliance. Please consult your counsel for a definitive interpretation of current statute and regulation and their impact on you and your organization.
