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1、A business of Marsh McLennanLaw&Policy Group|GRISTTop 10 complianceissues for healthand leave benefitsin 2023By Mercers Rich Glass,Cheryl Hughes,Geoff Manville,Katharine Marshall,Dorian Z.Smith and Jennifer WisemanOct.28,2022Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefit
2、s in 2023Copyright 2022 Mercer LLC.All rights reserved.iContents1.Prescription drugs.12.Group health plan transparency.43.Mental health parity.104.COVID-19 pandemic winds down.135.Gender and family planning issues in benefits.186.Surprise billing.237.State-mandated paid leave and other state law tre
3、nds.278.Preventive services.309.Other ongoing ACA concerns.3710.HSA,HRA and FSA developments.43 Related resources.48Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.iHealth and leave benefitcompliance issues for 2023In
4、2023,employers will continue to focus on complying with transparency requirementsdesigned to provide greater insight into the prices of prescription drugs and other healthcare.Other issues in the spotlight include health plan coverage of gender,family planning(including abortion)and behavioral healt
5、h.With respect to gender and family planning,employer-sponsored health plans must comply with rapidly changing federal and state lawsand regulations,assess litigation risks,and offer health coverage that aligns with employeesneeds and the employers diversity,equity and inclusion(DEI)goals.Employers
6、may want or have to expand behavioral health coverage in response to the nations mental healthcrisis and tougher enforcement of the Mental Health Parity and Addiction Equity Act(MHPAEA).This GRIST summarizes expected 2023 compliance and policy developments affectinghealth and leave benefits and sugg
7、ests action steps for employers.Topics covered include:Congressional outlook.Novembers midterm elections and the possibility of newmajorities in the next Congress will have important repercussions for healthcare policy in2023.In the meantime,lawmakers are eyeing a potential healthcare package that c
8、ouldpass with bipartisan support this year in a post-election lame-duck session or carry overto 2023.Proposals of interest to employers would extend telehealth flexibilities,improvecare for mental health and substance abuse,provide greater transparency into pharmacybenefit manager(PBM)practices,incr
9、ease employer penalties for MHPAEAnoncompliance,codify federal protections for same-sex marriages,and require parity forkidney dialysis benefits relative to benefits for other chronic medical conditions.Regulatory outlook.The Biden administration is likely to continue aggressively using itsexecutive
10、 authority and regulatory tools to push its policy goals.Watch for enforcementactivity and guidance on implementing the MHPAEA,the Affordable Care Act(ACA)andthe transparency reforms enacted by the 2021 Consolidated Appropriations Act(2021CAA),including the ban on surprise billing and prescription d
11、rug data collection(RxDC)reporting.The high cost of prescription drugs will remain in focus.In addition,the COVID-19 public health emergency(PHE)and national emergency(NE)will likely conclude in2023,leaving health plans to unwind various temporary measures either permitted ormandated by law or regul
12、ators.Litigation outlook.Litigation may limit the Biden administrations efforts to expandhealthcare reforms.Challenges to existing healthcare reforms pending in the courtstarget the ACAs preventive services mandate,surprise billing regulations and ACASection 1557 nondiscrimination regulations.State
13、outlook.At the state level,employers can expect states to implement paid leavelaws and prescriptions drug pricing reforms,among other health coverage mandates.Congressional outlookA number of bipartisan proposals have a chance of making it into 2022 year-end legislation,despite midterm election tens
14、ions and Republican anger over the Inflation Reduction Act(IRA)(Pub.L.No.117-169),the Democrats budget reconciliation bill recently enacted onLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.iiparty-line votes.While the
15、 new law makes big changes to Medicare prescription drug pricingand coverage,the acts provisions generally dont directly affect employer plans.Thelegislation also drops many employer-focused proposals contained in earlier,moreexpansive versions of the bill known as the Build Back Better Act.Outlook
16、for healthcare proposals with bipartisan supportDemocrats nearly two-year focus on achieving their policy goals through the reconciliationprocess without Republican support has fueled pent-up demand for final action on severalbipartisan priorities.Though Congress has gone home to campaign ahead of t
17、he midtermelections,lawmakers are actively considering the contours of a healthcare package thatcould hitch a ride on an omnibus year-end measure to keep the government running whencurrent funding expires on Dec.16.That package could include proposals on telehealth,mental health,same-sex marriage ri
18、ghts,insulin costs and kidney dialysis benefits.Extension of telehealth flexibilities.Lawmakers want to extend a telehealth provision inthe Coronavirus Aid,Relief and Economic Security(CARES)Act(Pub.L.No.116-136)thatallows:Employers to offer predeductible coverage of telehealth and other remote care
19、 servicesin health savings account(HSA)-qualifying high-deductible plans(HDHPs)Otherwise HSA-eligible individuals to receive predeductible coverage for telehealth andother remote care services from a stand-alone vendor outside of the HDHPNeither type of predeductible telehealth coverage will jeopard
20、ize an individuals eligibility tomake or receive HSA contributions while the temporary relief is in place.The relief originallyapplied for plan years starting on or before Dec.31,2021.Congress extended this relief inthe 2022 Consolidated Appropriations Act(2022 CAA)(Pub.L.No.117-103),but only fromAp
21、ril 1 through Dec.31,2022 not retroactively to Jan.1,2022.Bipartisan bills(HR 5981,S 1704)would make this relief permanent,although another temporary extension,perhapsfor two years,appears more likely.Congress may also extend the temporary PHE relief that treats stand-alone telehealthbenefits and ot
22、her remote care services for benefits-ineligible employees(e.g.,part-time orseasonal workers)like an excepted benefit,exempt from many ERISA and ACA group healthplan mandates.Unlike the temporary relief,the legislation(HR 7353)would let all employers,regardless of size,offer excepted-benefit stand-a
23、lone telehealth arrangements to allemployees,not just those ineligible for benefits.Mental healthcare.Mental health advocates are optimistic that Congress will includebehavioral health reforms in a year-end package,as House and Senate committees haverecently made progress on several related bills.A
24、leading proposal in Congress is House-passed bipartisan legislation(HR 7666)that would reauthorize and expand a number offederal programs meant to support behavioral healthcare and workforce training.The billwouldnt directly affect private employers programs but would require self-funded,nonfederalg
25、overnmental plans to comply with mental health parity laws.It would also require PBMs toreport a wide range of data about their business practices to plan sponsors and thegovernment at least every six months.Reportable data would include how the PBM setsrebates and discounts and what it pays for dru
26、gs.Those provisions have bipartisan supportand backing from employers and stand a good chance of landing in any final mental healthmeasure this year.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.iiiAnother House-pass
27、ed bill(HR 7780)from Democrats has potentially adverse implicationsfor employers but faces headwinds in the Senate.Provisions would boost Department ofLabor(DOL)funding for enforcement,expand the ability of DOL and others to sue plans andhealth insurers for mental health parity violations,and let DO
28、L impose civil monetarypenalties for MHPAEA violations.The bill would also ban arbitration clauses,class actionwaivers,and clauses granting discretion to determine benefits or interpret ERISA plan terms.Same-sex marriage rights.A push to pass a bill establishing a federal statutory right tosame-sex
29、marriage stalled earlier this year but looks set to resume when lawmakers return inNovember.When the Supreme Court earlier this year ended the federal constitutional right toabortion(Dobbs v.Jackson Womens Health Org.,142 S.Ct.2228(2022),a concurringopinion by Justice Clarence Thomas suggested that
30、the court should revisit past decisionsundergirding same-sex marriage.In response,the House passed a bill(HR 8404)tomandate that states honor out-of-state marriages,regardless of a couples sex,race,ethnicity or national origin.The effort hit a roadblock in the Senate,where some Republicansraised rel
31、igious liberty concerns.But the bills supporters,including several GOP senators,are optimistic about winning the 60 votes needed for passage once the election dust hassettled and the political pressure on outgoing lawmakers has lifted.Cap on insulin costs.Senators from both parties are eyeing the la
32、me-duck session foraction on capping consumers out-of-pocket costs for insulin in the commercial market,though the outlook is uncertain.A bipartisan Senate proposal floated earlier this year wouldcap consumer copays for insulin in the commercial market at$35 a month and incentivizedrugmakers to lowe
33、r list prices.However,the nonpartisan Congressional Budget Officeprojects that the bills curbs on insurers ability to negotiate net prices and potential increasedspending on insulin products would raise premiums for Medicare and employer plans,dimming chances for final action this year.Parity for ki
34、dney dialysis benefits relative to other chronic care benefits.BipartisanHouse and Senate bills(HR 8594,S 4750)that could see action this year would amend theMedicare secondary payer(MSP)statute to require that employer plans cover kidney dialysisbenefits in parity with benefits for other chronic me
35、dical conditions.The bills seek to undo theSupreme Courts holding in Marietta Memorial Hospital Employee Health Benefit Plan v.DaVita Inc.(142 S.Ct.1968(2022).The decision found that a health plan with limiteddialysis benefits does not violate the MSP statute if the plans terms apply uniformly to al
36、lenrollees and dont vary based on end-stage renal disease or Medicare eligibility orentitlement.The legislation has triggered a fierce lobbying fight.Plan sponsors argue that legislationrequiring parity between kidney failure and other chronic conditions is tantamount to anexpensive in-network cover
37、age mandate.Market concentration in the dialysis industry wouldmake that mandate even more costly for plan sponsors.Dialysis providers and patientgroups counter that letting the court decision stand will encourage plans to restrict dialysiscoverage to cut costs,adding to Medicares financial burden.A
38、 CBO score of the bills couldproject major savings for the government,giving supporters of the bills a powerful talkingpoint.Midterms may elevate GOP agenda but major reforms unlikelyA likely divided government in 2023 means less ability for either party to push through majorreforms.Nevertheless,Con
39、gress will have an opportunity to act on any bipartisan legislativeLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.ivleftovers from 2022 and find compromise on additional issues.Those issues includeencouraging teleheal
40、th,enhancing transparency,barring anticompetitive contracting termsbetween providers and health plans,improving care for mental health and substance usedisorders,and updating HSA/HDHP rules to better coexist with direct primary carearrangements and increase the flexibility to offer first-dollar cove
41、rage.While both partiessupport paid leave,the partisan divide in approach makes enactment of a federal mandateunlikely.If Republicans win control of either/both the House and Senate,their power will be checkedby the presidents veto.Overriding a veto requires a two-thirds majority of the Senate,somet
42、hing Republicans wont have.In any case,the GOP has turned away from trying torepeal/replace the ACA and is not offering detailed healthcare policy plans.HouseRepublicans recently released Commitment to America agenda,however,calls forexpanded access to telehealth and“lower prices through transparenc
43、y,choice,andcompetition.”If Democrats keep control of both chambers and expand their 50-seat Senate majority,theymay try to bring back proposals dropped from the 2021 budget reconciliation proposal,theBuild Back Better Act.Those proposals include a federal paid leave entitlement,a lower ACAaffordabi
44、lity threshold for employer plans and DOLs ability to assess civil monetary penaltieson employers for mental health parity violations.A major priority,however,would focus onhelping the Biden administration implement the IRAs extensive Medicare drug pricing andPart D reforms.2023 health and leave ben
45、efit planningThis list highlights 10 top compliance-related priorities for planning 2023 health,leave andfringe benefits and recommends general actions for each item.The links below take readersto more detailed information.The appendix provides resources related to each compliancetopic.1.Prescriptio
46、n drugs.Watch for federal legislative and regulatory efforts to curb drug andinsulin prices and increase access,especially in light of a recent presidential directive.Monitor ongoing state efforts to restrict PBM activities and cap participant cost sharing forinsulin and other commonly used drugs.Pr
47、epare to comply with a new prescription drugreporting requirement under Section 204 of the No Surprises Act(NSA),part of the 2021CAA.The interim final rule(IFR)set an initial deadline of Dec.27,2022,for the 2020 and2021 reporting years.Follow the progress of the Federal Trade Commission(FTC)investig
48、ation of six major PBMs,whose practices have drawn considerable attention inrecent years.2.Group health plan transparency.Prepare to make available the self-service costcomparison tool required under the final transparency-in-coverage(TiC)rule for grouphealth plans and insurers beginning with the pl
49、an year that starts on or after Jan.1,2023.Confirm that machine-readable files(MRFs)are updated monthly with accurate andcomplete in-network provider rates and out-of-network allowed payments.Whenpossible,look for analyses of the healthcare prices made public by hospitals since 2021under the final t
50、ransparency regulation for hospitals and by third-party administrators(TPAs)and insurers since July 2022.Ensure that the 2021 CAAs required prescriptiondrug reporting is timely submitted in 2022 and 2023.Watch for more guidance on theremaining transparency requirements especially the advanced explan
51、ations of benefits(EOBs)and continue good-faith efforts to comply in the interim.Work with vendors toLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.vensure compliance,and update contracts as necessary most plan sponso
52、rs dont havethe required information for the new disclosures.Consider negotiating performanceguarantees related to transparency compliance.3.Mental health parity.Continue to comply with the MHPAEA.Ensure that the plan has awritten comparative analysis of all nonquantitative treatment limits(NQTLs),a
53、s requiredby the 2021 CAA.Review the plan for NQTLs that have triggered litigation and agencyscrutiny.Include assistance with NQTL comparative analyses in requests for proposals(RFPs)and vendor contracts.In 2023,watch for new legislation,guidance and theagencies report to Congress,as well as ongoing
54、 and emerging parity and behavioralhealth coverage litigation.Consider MHPAEA parity requirements when improving agroup health plans medical or surgical benefits.4.COVID-19 pandemic winds down.In anticipation of the COVID-19 PHE and NE endingin 2023,review group health plan terms for COVID-19-relate
55、d coverage,includingtesting,vaccines and treatment.Review benefit terms or offerings made under temporaryCOVID-19 relief laws and guidance.When agency relief during the COVID-19 NEexpires,confirm proper winding down of extended deadlines for claims and appeals,special enrollment under the Health Ins
56、urance Portability and Accountability Act(HIPAA)and continuation coverage elections and payments under the Consolidated OmnibusReconciliation Act of 1985(COBRA).Review federal,state and local COVID-19 guidanceon employee health and safety,leave,and workplace nondiscrimination,and reviewrelated polic
57、ies as many of these requirements expire.Monitor federal legislation thatcould extend COVID-19 testing requirements or telehealth flexibilities.5.Gender and family planning issues in benefits.Assess the health plan impact of theSupreme Courts Dobbs v.Jackson Womens Health Organization decision.Emplo
58、yersconsidering enhanced fertility,adoption and surrogacy benefit programs to support DEIgoals and the needs of a diverse workforce should be mindful of compliance issues,including federal tax laws,the ACA and state laws.Review contraceptive coverage toconfirm compliance with recent agency guidance.
59、Consider whether federal or state lawsrequire benefit changes for LBGTQ employees and their family members.6.Surprise billing.Confirm plan administrators are complying with the ban on surprisebilling for emergency services,air ambulances and certain nonemergency servicescovered by the NSA.Verify tha
60、t emergency services are covered to the extent requiredby the NSA,and plan documents have corresponding updates.Make sure plandocuments also contain the necessary cost-sharing information for all services protectedby the NSA.Confirm the latest required surprise billing notice is posted on a publicwe
61、bsite and included with EOBs.Review the frequency and outcomes of independentdispute resolution(IDR)processes.Consider the appropriateness of additional vendorfees related to surprise billing compliance and/or any shared-savings program charges.7.State-mandated paid leave and other state law trends.
62、Review state laws impactinggroup health and benefit plans.Look for more benefit mandates for fully insured plans.State initiatives will likely include legislative action and agency rule-making on paid familyand medical leave(PFML)and paid sick leave,more state restrictions on PBMs for bothfully insu
63、red and self-funded plans and changes to telehealth laws.Prepare for 2023reporting obligations.Monitor an ERISA preemption challenge currently pending beforethe US Supreme Court involving to Seattles hotel employee healthcare ordinance andother ERISA-related challenges,particularly to state abortion
64、 laws.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.vi8.Preventive services.Confirm nongrandfathered group health plans cover all ACA-required in-network preventive services without any deductible,copay or other cost
65、sharing.Modify preventive benefits for the 2023 plan year to reflect new or revisedrecommendations from the US Preventive Services Task Force(USPSTF),the HealthResources&Services Administration(HRSA),the Advisory Committee on ImmunizationPractices(ACIP)of the Centers for Disease Control and Preventi
66、on(CDC),and ACAguidance.Watch for new COVID-19 preventive services or vaccines,whichnongrandfathered health plans must cover without cost sharing on an expedited timeframe.Determine the starting age for mandated coverage of breast cancer screeningwithout cost sharing.Ensure coverage of ACA-mandated
67、womens contraceptivesapproved by the Food and Drug Administration(FDA),unless the employer has religiousor moral objections to contraceptives.Monitor litigation that could spare employer plansponsors with religious objections from covering preexposure prophylaxis(PrEP)HIVmedications and all nongrand
68、fathered group health plans and insurers from coveringACA-mandated USPSTF-recommended preventive services without cost sharing.Tracklitigation that could require group health plans and insurers to continue coveringinstruction in fertility awareness-based methods.Update plan documents,summary plandes
69、criptions(SPDs),summaries of benefits and coverage(SBCs),and other materials asneeded.9.Other ongoing ACA concerns.Review 2023 group health plan coverage and eligibilityterms in light of employer shared-responsibility(ESR)strategy,ESR and minimumessential coverage(MEC)reporting duties,and ACA benefi
70、t mandates.Consider the planimpact(if any)now that the“family glitch”for affordable coverage is fixed.Ensure thatany rehired retirees are not covered under a“retiree only”plan exempt from many ERISAand ACA requirements.Comply with new obligations under the ACA Section 1557 rules.Continue to calculat
71、e and pay the Patient-Centered Outcomes Research Institute(PCORI)fee for self-funded health plans,and prepare for medical loss ratio(MLR)rebates.Monitor ongoing litigation challenging various ACA provisions,including theobligation for nongrandfathered group health plans to cover USPSTF-recommendedpr
72、eventive services without participant cost sharing.10.Health savings account(HSA),health reimbursement arrangement(HRA)andflexible spending account(FSA)developments.For 2023,discontinue changes madeby temporary COVID-19 relief,unless extended or made permanent by future legislationor agency guidance
73、.Decide whether to continue(or to adopt)the permanentenhancements to account-based plans under the CARES Act(Pub.L.No.116-136),theIRA(Pub.L.No.117-169)and IRS guidance.Amend cafeteria plans under InternalRevenue Code(IRC)Section 125 for changes implementing COVID-19 relief;finalamendments for calend
74、ar-year plans generally are due by Dec.31,2022,butnoncalendar plans may have until the last day of the 20222023 plan year for certainamendments.Update HDHPs and account-based plans for indexed dollar limits.Identifypre-or no-deductible health benefits,programs or point solutions that could jeopardiz
75、e anindividuals eligibility for HSA contributions,and confirm strategy.Consider whetherpending IRS regulations on individual-coverage HRAs(ICHRAs)or direct primary carearrangements(DPCAs)will impact benefit strategies and compliance efforts.Reviewfuture IRS guidance on the definition of a tax depend
76、ent for any impact on account-basedplans.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.1Section 1Prescription drugsActionWatch for developments related to a recent executive order aimed at lowering drugcosts and expa
77、nding access.Monitor federal activity on prescription drug and insulincosts,particularly for Medicare and Medicaid coverage,which may influence drugcosts for employer-sponsored coverage.Track state legislative and regulatory effortsto restrict PBM activities,particularly any limitations affecting bo
78、th fully insured andself-funded plans in light of recent ERISA preemption case law.Prepare to complywith the RxDC reporting requirement.The first report is due Dec.27,2022,but startingin 2023,annual reports will be due every June 1.Coordinate with insurers,TPAs andother vendors to ensure that all da
79、ta files and narrative responses are properlysubmitted.Track the FTC investigation into six large PBMs impact on prescriptiondrug access and affordability.Specific stepsPay attention to how the US Department of Health and Human Services(HHS)responds to Octobers Executive Order 14087 on lowering pres
80、cription drug costs.The president directed HHS by mid-January 2023 to test new healthcare payment anddelivery models that could decrease drug costs and increase access to innovative drugtherapies.Follow developments related to prescription drug and insulin costs,especially withthe installation of a
81、new Congress in 2023.Keep tabs on IRA developments.The law authorizes the Centers for Medicare&Medicaid Services(CMS)to negotiate drug prices for Medicare plans.In addition,the IRAmakes plan design changes to the standard Medicare Part D benefit that will take effectin later years.Monitor federal le
82、gislative proposals to extend insulin cap.Look for bills that seek toextend the IRAs Medicare$35 monthly cap on cost sharing for insulin to group healthplans.Track federal PBM transparency legislation.Watch for bills that mirror the proposals inS 4293,the Pharmacy Benefit Manager Transparency Act,in
83、troduced in 2022.The billcleared a Senate committee before stalling.If enacted,the measure would have bannedspread pricing and required extensive PBM disclosures and reporting.Look for developments in the wake of the US Supreme Courts Section 340Bdecision.Keep an eye on CMS actions resulting from th
84、e Supreme Courts decision inAmerican Hospital Association v.Becerra(142 S.Ct.1896(2022).The ruling held thatthe government unlawfully applied reimbursement rates for 340B hospitals in 2018 and2019.The impact of the decision could affect drug prices in future years.In addition,pharmaceutical manufact
85、urers are in ongoing discussions with hospitals and PBMs aboutthe program.These discussions may result in operational changes in the near future.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.2Work with insurers,PBMs
86、and TPAs to address state initiatives affecting plan designand costs.Review PBM contracts.Examine compliance with applicable state laws andimplementing regulations,particularly in states that have enacted legislative changes inthe past year.Those states include Alabama,Arizona,Colorado,Delaware,Flor
87、ida,Illinois,Indiana,Iowa,Louisiana,Maine,Minnesota,New Hampshire,North Carolina,North Dakota,Oklahoma,South Carolina,Tennessee,Texas,Vermont,West Virginiaand Wisconsin.Monitor state efforts to cap insulin costs.Look for more states such as Louisiana,Maryland,Oklahoma and Washington to implement ins
88、ulin caps for fully insured plans.Watch for state attempts to further restrict PBM activities.Keep an eye on proposedlaws that would limit or prohibit practices like white bagging(providing prescription drugsat the site of care),brown bagging(providing prescription drugs through a specialtypharmacy)
89、,and other price-saving programs for fully insured and self-funded plans.Inparticular,Georgia,Kentucky,Maine,Minnesota,Missouri and Wisconsin consideredsuch bills in 2022.Seven states Colorado,Maine,Maryland,New Hampshire,Ohio,Oregon and Washington have prescription drug affordability boards that co
90、uldimplement substantive rules affecting PBM activities.Monitor court rulings addressing ERISA preemption of state PBM laws that includeself-funded plans within their scope.Track post-Rutledge state efforts.Determine to what extent new state PBM laws affectself-insured ERISA plans in the aftermath o
91、f the US Supreme Courts Rutledge v.Pharmaceutical Care Management Association decision(140 S.Ct.812(2020).Theruling held that ERISA does not preempt an Arkansas law regulating the cost paid byPBMs to pharmacies.Since then,ERISA preemption challenges to state PBM legislationhave failed in two other c
92、ases:Pharmaceutical Care Management Association v.Wehbi,18 F.4th 956(2021)Pharmaceutical Care Management Association v.Mulready,No.5:19-cv-00977-J(WD OK April 4,2022)Build a sustainable,compliant approach to RxDC reporting.Ensure timely filing.Confirm that the initial filing occurs by Dec.27,2022,in
93、 a completeand accurate manner by all entities that commit to submitting data through the HealthInsurance Oversight System(HIOS)application,available on the CMS Enterprise Portal.Monitor each vendors or insurers processes and ability to comply by the applicabledeadline going forward.Address ongoing
94、compliance concerns for the 2020 and 2021 submissions.Reviewcontracts with insurers,TPAs,PBMs and other vendors as needed:If your plan is insured,your insurer should make the entire submission on your behalf,but confirm that understanding in writing with the insurer.If your plan is self-funded,consi
95、der whether to require that vendors submit thevarious files on your behalf.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.3 Review any updates to instructions or other guidance that may require you tochange the approa
96、ch to the RxDC submission due in June 2023.Consider whether vendor contracts should require the vendor to provide a copy ofthe plan-level data files(D1D8)and the narrative response.This may becomenecessary if CMS instructions or other guidance requires plans to combine datafrom all vendors and submi
97、t one set of unique files.Decide whether to submit certain files.Consider whether to submit potentially the P2file or the D1 file to CMS yourself,and whether to file an optional supplementaldocument or connect with CMS to explain any uncooperative vendors.Review contractual protections.Determine if
98、RxDC reporting and cooperation areadequately addressed(for example,through provisions on indemnification andperformance guarantees),particularly in the event of a reporting failure.Decide whether to shift responsibility for submission of specific data files.Regardless of the approach taken for the 2
99、020 and 2021 submissions,considertransferring responsibility from or to insurers,TPAs,PBMs and other vendors.Largeemployers may have sufficient resources to handle the HIOS submission and assess theprescription drug data to make better plan design decisions.Watch for additional changes and possible
100、litigation.Stay up to date on CMSchanges to the instructions,FAQs or guidance and any additional good-faith compliancerelief.Very limited relief currently is available for one field(average monthly premium paidby employers and employees(defined as members in the instructions)in one data file(the D1
101、file on premiums and life-years).Address any PBM repercussions or changes resulting from the FTC probe.Consult with PBMs.Follow up with the plans PBM on what impact,if any,the FTCinvestigation of six major PBMs will have on plan design and costs.The inquirys focusincludes PBM fees and clawbacks,pati
102、ent steering,pharmacy reimbursements andspecialty drug practices.Track similar state developments.Stay abreast of any state investigations similar tothe FTC inquiry.Related resourcesLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All righ
103、ts reserved.4Section 2Group health plan transparencyActionPrepare to make available the self-service cost comparison tool required under thefinal TiC rule for group health plans and insurers beginning with the plan year thatstarts on or after Jan.1,2023.Confirm that MRFs are updated monthly with acc
104、urateand complete in-network provider rates and out-of-network allowed payments.Whenpossible,look for analyses of the healthcare prices made public by hospitals since2021 under the final transparency regulation for hospitals and by TPAs and insurerssince July 2022.Ensure that the 2021 CAAs required
105、prescription drug reporting istimely submitted in 2022 and 2023(see Prescription drugs for more information).Watch for more guidance on the remaining transparency requirements especiallythe advanced EOBs and continue good-faith efforts to comply in the interim.Workwith vendors to ensure compliance,a
106、nd update contracts as necessary most plansponsors dont have the required information for the new disclosures.Considernegotiating performance guarantees related to transparency compliance.Specific stepsReview the final TiC rule and later enforcement relief for group health plans andinsurers,and cont
107、inue complying in 2023.Determine which plan service providers willsupply required data for the self-service transparency tool and how they will deliver this data.Consider using a transparency vendor to develop the self-service tool or provide aconsolidated tool.Decide whether to include optional qua
108、lity metrics along with the requiredprice information in the self-service tool.Most plans made great strides to comply with theMRF requirement in 2022,but some MRFs appear to be works in progress.Plans shouldcontinue to comply with the MRF requirements,including recordkeeping and monthlyupdates.Plan
109、 sponsors should consider each of these requirements when onboarding newvendors.Communicate the rollout of the self-service tool to plan participants,and updatelanguage in the plan document and SPD as necessary.Ensure compliance with the TiC rule.The TiC rule doesnt apply to grandfatheredplans,HRAs,
110、excepted benefits,expatriate plans exempt from ACA provisions,retiree-only plans or short-term limited-duration insurance.The rule requires other group healthplans,including self-funded plans and health insurance issuers,to take two key actions:Provide a self-service cost transparency tool for 500 c
111、overed services anditems for plan years beginning on or after January 2023 and for all coveredservices and items by the 2024 plan year.The list of 500 items and services toinclude in the first phase of implementing the internet-based self-service tool isavailable on the TiC website at www.cms.gov/he
112、althplan-price-transparency/resources/500-items-services.Plans and issuers should refer to thiswebpage for the most up-to-date list of codes to use in the self-service tool for planyears beginning on or after Jan.1,2023,and before Jan.1,2024.Regulators willupdate the list quarterly and provide reaso
113、nable time for plans and issuers to updatetheir self-service tools accordingly.(As discussed later,the 2021 CAA also requires aprice comparison tool,but regulators have delayed enforcement of this requirement toLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyr
114、ight 2022 Mercer LLC.All rights reserved.5align it with the self-service cost transparency tool.)Plan participants must haveaccess to the internet-based self-service tool,which must provide a variety ofinformation and:Disclose personalized out-of-pocket costs for all covered healthcare items andserv
115、ices(with paper copies available on request)State any applicable prerequisite Give an estimate of a participants cost-sharing liability for any in-or out of-network provider,allowing the participant to compare costs before receivingmedical care Enable searching by billing code,descriptive terms,in-n
116、etwork provider name andother relevant factors(like geography)Track a participants accruals toward any cumulative treatment limitations(likeday or visit limits)as well as deductibles and out-of-pocket maximums Include required disclosures(DOL has provided a draft model notice)Make MRFs available on
117、a public website,starting with plan years beginning on orafter January 2022,subject to the enforcement delays described below.The final TiCrule requires standardized MRFs,updated monthly,containing the plans negotiatedrates for in-network providers,past allowed payments to out-of-network providers a
118、ndprescription drug information.Make sure MRFs are timely posted.The final TiC rule requires posting MRFswith in-network rates and out-of-network allowed amounts and billed charges forplan years beginning on or after Jan.1,2022,but regulators deferredenforcement until July 1,2022.Plans with noncalen
119、dar plan years beginning afterJuly 1,2022,must post files by the first day of the 20222023 plan year.Confirm that MRFs are updated monthly with accurate and complete in-network provider negotiated rates and out-of-network allowed payments.CMShas provided a schema and helpful discussions on GitHub th
120、at developers mustfollow in preparing the MRFs.Ensure all data elements for the negotiated rate fileand the allowed amounts file are included in the applicable MRF.Public posting.If a group health plan does not have a website,agencyguidance allows the plan to enter into a written agreement to have t
121、he plansinsurance issuer or TPA post the information on its public website forparticipants,beneficiaries and enrollees.The plan satisfies the postingrequirements only if the health insurance issuer or TPA makes the informationavailable in the required manner.This guidance applies when the plansponso
122、r(for example,an employer)maintains a public website,but theemployers group health plan does not.Recordkeeping.MRFs must be updated monthly(reasonably consistentperiods of approximately 30 days)and clearly indicate the date of the mostrecent update.The TiC rule doesnt have a specific retention requi
123、rement,butseparate guidance addresses recordkeeping.The guidance recommends thatgroup health plans and health insurance issuers maintain prior months MRFsto demonstrate compliance with the TiC rule.In addition,other federal lawsLaw&Policy Group|GRISTTop 10 compliance issues for health and leave bene
124、fits in 2023Copyright 2022 Mercer LLC.All rights reserved.6may affect MRF retention,such as laws governing the accessibility,privacy orsecurity of information or requiring properly authorized representatives to haveaccess to participant,beneficiary,or enrollee information held by plans andissuers.St
125、ates may have their own recordkeeping and retention requirementsfor certain health insurance plans and issuers.Alternative reimbursement arrangements.Regulators have provided anenforcement safe harbor for plans and issuers that use certain alternativereimbursement arrangements.The safe harbor applie
126、s when an alternativereimbursement arrangement does not enable plans and issuers to deriveaccurate and specific contracted dollar amounts for covered items andservices before they are provided.The safe harbor also applies when analternative reimbursement arrangement cannot disclose specific dollaram
127、ounts according to the schema in the technical implementation guidanceon GitHub.Watch for guidance on posting MRFs with prescription drug prices.Theagencies have delayed this requirement while they determine whether it remainsappropriate in light of the reporting on pharmacy benefits and drug costsm
128、andated by the 2021 CAA.Under the 2021 CAA,plans should prepare to report2020 and 2021 prescription drug data by Dec.27,2022,and 2022 data by June 1,2023(see Prescription drugs for details).Review the impact on potential MLR rebates(insured plans only).To encourageconsumers to shop for better prices
129、,the rule allows insurers to reduce MLR rebates ifinsured plans share cost savings with enrollees who choose less-expensive providers.Avoid potential penalties.Unlike the 2021 CAA requirements discussed below,grouphealth plans do not have good-faith relief from enforcement of the TiC rule.Group heal
130、thplan sponsors failing to meet the TiC rule could face penalties of$100 per day perparticipant.However,many group health plan sponsors dont have access to allnegotiated prices and cant provide the transparency disclosures without input from theplans insurer or TPA.The rule offers some relief to spo
131、nsors in that situation:A safe harbor spares an employer with a fully insured group health plan from havingto provide the transparency disclosures to participants,as long as a writtenagreement requires the insurer to do so.If the insurer fails to provide the requiredinformation,the insurer not the g
132、roup health plan will face liability for theviolation.Employers with insured plans should ensure that their insurers provide sucha written agreement.The rule also provides relief for group health plans that make an error or omission orare unable to obtain complete or accurate information from anothe
133、r entity,despiteacting in good faith and with reasonable diligence.Group health plans likewise wontface penalties if the website hosting the transparency tool and files is temporarilyinaccessible.In both cases,the plan must correct the problem as soon as practicable.Review and comply with the 2021 C
134、AAs transparency requirements and the agenciesenforcement relief.Look for additional guidance on several 2021 CAA transparencyLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.7topics in 2023.The 2021 CAAs requirements,u
135、nless otherwise noted,generally tookeffect for the 2022 plan year and include the following:Price comparison tool.Plans and insurers must provide a price comparison tool similarto the self-service price transparency tool required by the final TiC rule(discussedabove).The tool must be available by te
136、lephone and on the plan or issuers website.Tothe extent practicable,the tool must allow participants to compare the cost sharing thatthey will owe for a specific item or service obtained from a participating provider in aparticular plan year and geographic region.Originally required for the 2022 pla
137、n year,the2021 CAAs price comparison tool is“largely duplicative,”according to regulators.Theydelayed enforcement until the 2023 plan year to align the 2021 CAAs price comparisontool with the TiC rules self-service cost transparency tool.However,regulators have yetto issue guidance that would align
138、the two requirements.Air ambulance reporting.The 2021 CAA requires group health plans and issuers toreport claims data for air ambulance services.HHS and the Transportation Departmentmust use that data to produce a comprehensive,publicly available report on airambulance services.This report is expec
139、ted to help shed light on whats driving the highcosts of these services.Proposed rules issued in September 2021 would requirereporting air ambulance data for calendar year 2022 by March 31,2023,and data forcalendar year 2023 by March 30,2024.Employers should watch for final rules with moreinformatio
140、n on air ambulance reporting.Advanced EOBs(enforcement delayed).Healthcare providers and facilities will have toprovide group health plans a good-faith estimate of expected charges when an enrolleeschedules a specific item or service.A group health plan that receives such a notificationor a request
141、from a participant has to meet tight time frames to provide an advanced EOBwith detailed information about the plans coverage of the scheduled item or service.Theagencies are delaying enforcement of this provision,pending publication of regulatoryguidance.Regulators have asked for comments about imp
142、lementing the newrequirement.Disclosures on health plan ID cards.Physical or electronic health plan ID cards mustinclude any applicable deductible or out-of-pocket maximum,along with a telephonenumber and website address for obtaining consumer assistance.Consumer assistancemay include information on
143、 hospitals and urgent care facilities that have a contractualrelationship for furnishing items and services under the plan.Regulators expect good-faith compliance until regulations are issued.Up-to-date provider directories.Group health plans must provide an accurate,verifieddatabase on their public
144、 website that contains a list of and directory information on eachhealthcare provider and facility that has a direct or indirect contractual relationship withthe plan.Group health plans also must prepare to respond to participant questions aboutthe provider directory.If this database incorrectly lis
145、ts an out-of-network provider as in-network and a participant or beneficiary obtains items or services from that provider,theplan must limit cost sharing to the in-network amount and credit that amount toward thein-network deductible or out-of-pocket maximum.Until regulations come out,regulatorsexpe
146、ct group health plans to show good-faith compliance by limiting charges for out-of-network care(as described above)when an enrollee receives inaccurate informationabout a providers network status.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Merce
147、r LLC.All rights reserved.8Broker and consultant disclosures.Brokers and consultants expecting to receive atleast$1,000 for their services will have to disclose to group health plans all direct andindirect compensation for those services.Regulators issued an enforcement policyregarding broker and co
148、nsultant disclosures:Pending future guidance or regulations,covered service providers and plan fiduciaries generally are expected to implement thedisclosure requirements using a good-faith,reasonable interpretation of the law.DOLconsiders that a good-faith and reasonable step is for a group health p
149、lans serviceprovider to take into account the departments July 16,2010,and Feb.3,2012,pensionplan guidance on this topic.Ban on gag clauses that prohibit sharing price and quality information(effectiveDec.27,2020).Plan sponsors need to attest that none of their plan-related contracts hassuch a gag c
150、lause.Regulators intend to issue additional guidance about when and howto submit these attestations.Review the final hospital transparency rule to understand what rates hospitals had tobegin disclosing in 2021.Work with relevant experts e.g.,data specialists orclinician to understand the hospital da
151、ta.Look for additional hospital disclosuresas enforcement against noncompliant hospitals increases.Examine how annual price disclosures might help plan participants.Here are thehospital disclosures currently required,which must be updated annually:Consumer-friendly disclosure.Hospitals must provide
152、payer-specific negotiatedcharges,discounted cash prices,and deidentified minimum and maximum negotiatedcharges the lowest and highest negotiated average price at the hospital for 300shoppable services.This information must be displayed and packaged in a“consumer-friendly”manner for example,by using
153、a price-estimator tool.Of the300 shoppable services,CMS selected 70,and hospitals could choose theremainder.Publicly available,MRFs.Each hospital must make available to the public MRFsthat contain gross charges,payer-specific negotiated charges,discounted cashprices,and deidentified minimum and maxi
154、mum negotiated charges for each itemand service the hospital provides.The payer-specific negotiated charge is the chargefor an item or service that a hospital has negotiated with an insurer or a TPA or insome cases,directly with a plan or a plan sponsor.Explore new opportunities to negotiate or dire
155、ctly contract rates with individualhospitals or hospital systems if a particular plan currently pays higher rates than whatother entities pay.The hospital data and the MRFs should provide unprecedented insightsinto the rates that participants and plans pay for medical services and items like prescri
156、ptiondrugs at hospitals.Be on the lookout for third-party analyses of the pricing data,and ask yourvendors/insurers how they are analyzing the data.Review newly released data,including new government reports,when available.Providers and PBMs generally have treated negotiated rates as proprietary inf
157、ormationinaccessible to plan sponsors.The transparency rule and the RxDC reportingrequirement could infuse more competition into the healthcare marketplace,allowing plansponsors to negotiate better rates while giving participants upfront estimates of medicalexpenses at different providers.Law&Policy
158、 Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.9Look for more robust disclosures from hospitals as enforcement efforts increase.Not all hospitals have fully complied with the transparency rule,but that may change asCMS increase
159、s enforcement.Effective Jan.1,2022,CMS increased the penalties fornoncompliance(currently$300 per day)to a maximum total penalty of about$2 millionper year.Besides sending out numerous warning and corrective letters,CMS hasapparently taken two civil enforcement actions against hospitals that failed
160、to comply withthe rule.Related resourcesLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.10Section 3Mental health parityActionContinue to comply with the MHPAEA.Ensure that the plan has a written comparativeanalysis of
161、all NQTLs,as required by the 2021 CAA.Review the plan for NQTLs thathave triggered litigation and agency scrutiny.Include assistance with NQTLcomparative analyses in RFPs and vendor contracts.In 2023,watch for newlegislation,guidance and the agencies report to Congress,as well as ongoing andemerging
162、 parity and behavioral health coverage litigation.Consider MHPAEA parityrequirements when improving a group health plans medical or surgical benefits.Specific stepsContinue to comply with MHPAEA.MHPAEA applies to grandfathered andnongrandfathered insured and self-insured group health plans sponsored
163、 by private-sectorand state or local government employers that offer benefits for mental health and substanceuse disorder(MH/SUD)treatments.The act does not apply to retiree-only plans,excepted-benefit plans,self-insured nonfederal government plans that have opted out of MHPAEA orplans that dont pro
164、vide MH/SUD benefits.Ensure covered MH/SUD benefits are in parity with covered medical/surgical benefits.Confirm plan terms and operations dont impose financial requirements or treatmentlimitations(quantitative and nonquantitative)on MH/SUD benefits that are morerestrictive than those imposed on the
165、 same classification of medical/surgical benefits.Confirm the plan has completed a written NQTL comparative analysis that complies withthe 2021 CAA.Review the nine data elements required for each NQTL in FAQ 2 of the MH/SUDimplementation and 2021 CAA FAQs Part 45.Consider having in-house or outside
166、counsel confirm compliance.Develop a response plan in case a government agency or a plan participant orrepresentative requests the NQTL comparative analysis.Identify legal counsel to assist.Plans risk potential penalties of up to$100 per day for failure to provide an NQTLwithin 30 days of a particip
167、ants request.Failure to respond could also trigger a DOLaudit based on a participant complaint.The window for initial response to a DOL request is generally short.Group healthplans have 45 days to specify corrective actions if DOL finds a parity violation andonly seven days to notify all enrollees o
168、f a final determination of noncompliance.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.11Verify that the carrier for an insured plan has completed the analysis and will notifythe employer if a federal or state author
169、ity finds a parity violation.Confirm that the insurer will respond to any requests for the NQTL comparative analysis,whether the request is from CMS,a state authority,or a plan participant,a beneficiary oran enrollee.Verify that the insurer complies with applicable state mental health parity laws,in
170、cludingany reporting requirements.For a self-insured plan sponsor that has yet to complete an NQTL comparativeanalysis,prepare one as soon as possible with assistance from TPAs and PBMs.Ask for a list of nonstandard NQTLs applied to the employers plan that is,anynonnumerical limitations or exclusion
171、s of MH/SUD treatments in the customized plandesign.Work with the TPA and other experts(e.g.,legal counsel and clinical experts)toprepare a comparative analysis of nonstandard NQTLs.When a separate vendor administers behavioral health benefits,engage assistance(e.g.,legal counsel and clinical expert
172、s)to demonstrate that the vendor applies NQTLscomparably to how the medical TPA applies NQTLs to medical/surgical benefits.Focus on NQTLs that have triggered enforcement action and litigation.Identify thefollowing NQTLs in your plan,and ensure that the plans comparative analysis demonstratesthat eac
173、h NQTL on MH/SUD benefits is in parity or else remove the NQTL:The 14 NQTLs identified in the agencies 2022 MHPAEA report to Congress ascommonly causing problems Any NQTL on applied behavior analysis(ABA)therapy A plan that covers ABA therapy but imposes NQTLs on the coverage(for example,byimposing
174、medical-management techniques or age limits)should ensure that theNQTLs are comparable to and applied no more stringently than those applied tomedical/surgical benefits.Consider eliminating any ABA therapy exclusion.Employer plan sponsors that wantto continue excluding coverage for ABA therapy shoul
175、d evaluate the compliance riskswith legal counsel.Any NQTL on medication-assisted treatment(MAT)for opioid use disorder Pay particular attention to NQTLs on MAT that DOL identified in 2016 guidance,2019guidance and the self-compliance tool.Require RFPs and vendor contracts to include assistance with
176、 the NQTL comparativeanalysis.Consider negotiating performance guarantees related to MHPAEA compliance,such as aguarantee of timely responses to disclosure requests from agencies or participants or aguarantee to conduct periodic self-audits for MHPAEA compliance.Law&Policy Group|GRISTTop 10 complian
177、ce issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.12Consider whether the network of behavioral health providers is adequate.Networkadequacy is a plan standard to which the parity rules apply.Look at using telehealth and covering out-of-network MH/SUD care a
178、t in-network rates toimprove access and help achieve network adequacy.Avoid“phantom networks”by ensuring providers in the network directory are taking newpatients.Consider MHPAEA when expanding medical or surgical benefits.Ensure that improvinga plans medical or surgical benefits doesnt inadvertentl
179、y result in MHPAEA noncompliance.Reducing cost sharing for medical/surgical benefits might cause a plans financial limitson MH/SUD benefits to fail MHPAEA testing.Removing NQTLs on medical/surgical benefits could cause NQTLs to be applied morestringently to MH/SUDs.In late 2022 through 2023,watch fo
180、r new legislation,guidance,and the agenciesreport to Congress,as well as ongoing and emerging parity and behavioral healthcoverage litigation.Proposed legislation includes a variety of mental health provisions relevant to employers from imposing civil monetary penalties for MHPAEA violations to elim
181、inating opt-outsfor self-funded government plans.(For more on mental health parity legislation,seeCongressional outlook.)DOL is expected to update the MHPAEA self-compliance tool,and oversight agencies(DOL,Treasury and HHS)are expected to issue final guidance and a report to Congresson MHPAEA enforc
182、ement efforts,as required by the 2021 CAA.Litigation against employer-sponsored health plans and TPAs is expected to continue,including the case of Wit v.United Behavioral Health(Nos.20-17363,21-15193,20-17364 and 21-15194(9th Cir.March 22,2022).The district court in that case orderedUnited Behavior
183、al Health(UBH)to reprocess more than 67,000 denied MH/SUD claims,finding UBH improperly used overly restrictive internal guidelines.The 9th Circuitoverturned the district courts order,but a rehearing has been requested.If the 9thCircuits decision stands,it might reduce the risk of class actions dema
184、nding thereprocessing of denied behavioral health claims or individual lawsuits challenging aplans clinical guidelines.Related resourcesLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.13Section 4COVID-19 pandemic winds
185、 downActionIn anticipation of the COVID-19 PHE and NE ending in 2023,review group health planterms for COVID-19-related coverage,including testing,vaccines and treatment.Review benefit terms or offerings made under temporary COVID-19 relief laws andguidance.When agency relief during the COVID-19 NE
186、expires,confirm properwinding down of extended deadlines for claims and appeals,HIPAA special enrollmentand COBRA elections and payments.Review federal,state and local COVID-19guidance on employee health and safety,leave,and workplace nondiscrimination,andreview related policies as many of these req
187、uirements expire.Monitor federallegislation that could extend COVID-19 testing requirements or telehealth flexibilities.Specific stepsReview plan coverage of COVID-19 testing,vaccines and treatments,and considerwhat,if any,changes to make when the PHE and NE expire.Reevaluate telehealthofferings and
188、 applicable state insurance coverage requirements.Review group health plan coverage of COVID-19 testing and determine if coverageterms will change when the PHE expires.During the PHE,group health plans(including grandfathered plans)must cover COVID-19 testing and related serviceswithout any particip
189、ant cost sharing,prior-authorization requirements or other medical-management standards whenever a licensed healthcare or otherwise authorized providerdeems the testing medically appropriate.Plans must also cover home over-the-counter(OTC)COVID-19 diagnostic tests,without a healthcare providers invo
190、lvement.Determine whether to continue COVID-19 testing coverage after the PHE expires,limit coverage to in-network providers,or apply cost sharing or medical-managementstandards.Weigh the cost savings of any coverage change against the benefits ofmaintaining a healthy workforce by identifying and is
191、olating COVID-19 cases earlyand often.Plans may be interested in limiting no-cost coverage to in-networkproviders to avoid the high costs charged by some nonparticipating providers andlaboratories.The HHS secretary authorizes PHEs for 90-day periods,unless terminatedearlier.First declared on Jan.31,
192、2020,the COVID-19 PHE has been renewedrepeatedly,most recently on Oct.13,2022.The secretary is expected to provide60 days notice prior to expiration of the COVID-19 PHE.Monitor federal legislation that could extend COVID-19 testing coverage requirementsfor group health plans beyond the PHE.Legislati
193、on(HR 6851)proposed in early 2022would extend this mandate through the end of 2023,regardless of the PHE.Watch for guidance on predeductible HDHP coverage of COVID-19 testing(andtreatments)without affecting a participants eligibility for HSA contributions.IRSNotice 2020-15 makes such coverage permis
194、sible“until further guidance is issued.”IRS could issue guidance winding down this flexibility for HDHPs after the PHELaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.14expires.(For more on predeductible COVID-19 covera
195、ge in HDHPs,see HSA,HRAand FSA developments.)Review group health plan coverage of COVID-19 vaccines,and determine whetherto change coverage terms when the PHE expires.During the PHE,nongrandfatheredgroup health plans must cover without cost sharing COVID-19 vaccines(all necessarydoses and boosters,i
196、ncluding administration)and related preventive services from bothin-network and out-of-network providers.Determine whether to continue covering COVID-19 vaccines and related servicesfrom out-of-network providers or limit this coverage to in-network providers after thePHE expires.When the PHE expires
197、,the ACA preventive care mandate requiresnongrandfathered group health plans to continue no-cost coverage of COVID-19vaccines from in-network providers,but not from for out-of-network providers.(Formore on preventive care requirements,see Preventive services.)Review group health plan coverage of COV
198、ID-19 treatments,and determinewhether to change coverage terms.No federal law requires covering COVID-19treatments without cost sharing,but some plan sponsors have chosen to providegenerous coverage during the pandemic.For plans still covering COVID-19 treatments with no or reduced cost sharing,dete
199、rmine whether to continue that coverage,and coordinate any change with theplans insurer or stop-loss carrier.For HDHPs covering COVID-19 treatments on a predeductible basis,watch forguidance winding down this flexibility after the PHE expires.(For more onpredeductible COVID-19 coverage in HDHPs,see
200、HSA,HRA and FSAdevelopments.)Review whether expanded telehealth benefits have to wind down.When the PHE expires,coverage of stand-alone telehealth programs will have toterminate at the end of the plan year,absent new regulatory guidance orcongressional intervention.Temporary relief from many ACA gro
201、up market reformsallowed large employers to offer stand-alone telehealth programs to employeesineligible for any other employer group health plan during the PHE.Review telehealth plan coordination with HDHPs.Temporary relief allows(i)HSA-qualifying HDHPs to cover telehealth and other remote care ser
202、vices on apredeductible basis,and(ii)an otherwise HSA-eligible individual to receivepredeductible coverage for telehealth and other remote care services from a stand-alone vendor outside of the HDHP,both without jeopardizing an individuals eligibilityto make or receive HSA contributions.This telehea
203、lth flexibility for HDHPs extendsonly until Dec.31,2022.After that date,HDHPs that cover telehealth services on apredeductible basis will not be HSA-compatible so individuals receiving predeductibletelehealth will not be able to make or receive HSA contributions,unless Congresstemporarily or permane
204、ntly extends this flexibility.If necessary,prepare amendments to plan documents,and revise employeecommunications accordingly.(For more details,see HSA,HRA and FSAdevelopments.)Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights re
205、served.15If an insured plan sponsor,consult with carrier to confirm compliance withapplicable state COVID-19 coverage requirements.For insured plans,state laws mayimpose coverage requirements for COVID-19 testing,vaccines and treatment that gobeyond the federal requirements.Essential health benefits
206、(EHBs)generally includecoverage for which treat COVID-19 diagnosis,treatment and vaccines.For example,California law(2022 Ch.545,SB 1473)extends required COVID-19-related coverage for insured plans and healthcare service plans(including HMOs)sixmonths after expiration of the federal COVID-19 PHE.(Fo
207、r more on this topic,seethese reports from The Commonwealth Fund and Kaiser Family Foundation(KFF).)Determine whether to make plan changes midyear or at year-end.Consider the timing of any plan changes to COVID-19 testing,treatment or vaccinationcoverage.Waiting until the beginning of the next plan
208、year may make sense;otherwise,prepare for the possibility of midyear election changes triggered by midyear plancoverage changes.Amend plan terms,ensure vendors will administer the planaccordingly,and prepare participant communications.If coverage terms will change after the PHE expires,prepare commu
209、nications todistribute at least 60 days before the change,unless earlier communications indicatedthe general duration of the additional covered services and reduced cost sharing.If coverage enhancements will continue beyond the PHE,amend plan documents,andcommunicate changes to employees as necessar
210、y(e.g.,through the SBC,SPD orsummary of material modifications(SMM).Prepare to update plan administrative processes,including the deadlines for COBRAelections and premium payments,HIPAA special enrollment elections,benefit claimsand appeals,and plan notices and disclosures.Prepare for the end of out
211、break period relief that gives plan participants and COBRAqualified beneficiaries extended time to complete certain tasks,such as electing HIPAAspecial enrollment or COBRA coverage,paying COBRA premiums,and filing benefitclaims or appeals.These deadlines are paused until the earlier of(i)one year fr
212、om the date a particularindividual was first eligible for relief or(ii)60 days from the end of the COVID-19 NE(i.e.,the end of the outbreak period).The COVID-19 NE is expected to expire at theend of February 2023,unless the president extends it for another year.Determine whether any previous communi
213、cations about deadlines need adjustmentwhen the NE expires.Decide whether,when and how to provide plan participants,COBRA qualified beneficiaries and others notices identifying deadlines that mark theend of each individuals truncated relief period.Prepare for the end of similar outbreak period relie
214、f that applies to distribution deadlinesfor nearly all ERISA plan notices and disclosures.When the outbreak period concludes,plans cant take advantage of relaxed rules allowing for electronic distribution of theserequired notices and disclosures during the outbreak period.Check with insurers and pla
215、n administrators to see whether ERISA-required noticesand disclosures are being distributed pursuant to temporarily relaxed rules.ConferLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.16with the plans insurer or admini
216、strator about winding down these temporaryprovisions and processes when the NE expires.Resume normal distribution methods and timelines for providing ERISA notices anddisclosures after the outbreak period ends.Limit electronic distributions tocircumstances that satisfy DOLs electronic safe harbor ru
217、les.Confirm COBRA election notices continue to be provided in a timely manner,despite therelief allowing plans extra time to distribute notices.Delays in distributing COBRAelection notices may further extend the election period,complicating administration evenmore.Watch for additional agency guidanc
218、e or clarifications,particularly on the operation ofrelief periods when the NE ends.Regularly review federal,state and local workplace safety,nondiscrimination andhealth guidance,and consult experts as needed.Monitor the CDC COVID-19 webpage,which tracks community spread and providesguidance for tes
219、ting,vaccines,travel,and health and safety information for businessesand workplaces.Regularly check the Occupational Health and Safety Administration(OSHA)COVID-19webpage,which includes FAQs and guidance on mitigating and preventing the spread ofCOVID-19 in the workplace,among other resources.Keep u
220、p with state OSHA standards,which may differ from federal standards and imposeheightened employer requirements that may continue into 2023.Review federal,state and local guidance on workplace nondiscrimination issues relatedto COVID-19.The Equal Employment Opportunity Commission(EEOC)enforces severa
221、l federallaws on workplace nondiscrimination and regularly updates guidance related toCOVID-19.Track state actions on COVID-19 vaccine mandates in the workplace(see this NationalAcademy for State Health Policy report).Consider offering updated COVID-19 booster shots(some of which may be bivalentand
222、cover different strains)and flu shots through an on-site clinic or an excepted-benefit employee assistance program(EAP_.Keep in mind that on-site clinics and most EAPs are excepted benefits exempt frommany of the ACAs ERISA group health plan requirements.Guidance from early 2021confirms that both on
223、-site clinics and excepted-benefit EAPs can offer COVID-19vaccinations without jeopardizing excepted-benefit status.This guidance is not contingenton the PHE or NE.If,however,an EAP provides COVID-19 testing after the end of the PHE and NE,evaluate whether doing so provides“significant benefits in t
224、he nature of medical care”that would imperil excepted-benefit status.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.17Review federal,state and local guidance on COVID-19 leave and other leave laws,including sick leave
225、,vaccine-related time off,leave to care for a family member orquarantine leave.Review federal guidance for employers and employees on pandemic-related issues fromDOLs coronavirus resources website.Monitor state and local leave guidance,using references like Mercers regularly updatedGRIST,States,citi
226、es tackle COVID-19 paid leave.Although many COVID-19 paid leavemandates have expired,a few remain in effect,and other jurisdictions have created newleave requirements that could be triggered by future PHEs.Related resourcesLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits
227、in 2023Copyright 2022 Mercer LLC.All rights reserved.18Section 5Gender and family planningissues in benefitsActionAssess the health plan impact of the Supreme Courts Dobbs v.Jackson WomensHealth Organization decision.Employers considering enhanced fertility,adoption andsurrogacy benefit programs to
228、support DEI goals and the needs of a diverse workforceshould be mindful of compliance issues,including federal tax law,the ACA and statelaws.Review contraceptive coverage to confirm compliance with recent agencyguidance.Consider whether federal or state laws require benefit changes for LBGTQemployee
229、s and their family members.Specific stepsAssess the group health plan implications of the Supreme Courts Dobbs v.JacksonWomens Health Organization decision(141 S.Ct 2228(2022),overturning Roe v.Wade and permitting states to regulate abortion at all stages of pregnancy.Review current abortion coverag
230、e under medical and pharmacy plans and determinewhat,if any,changes will be made to your benefit plans or programs.Check with insurer or TPA regarding the coverage and availability of medicationabortions and access to prescriptions via mail in accordance with FDA guidelines.If adding or enhancing a
231、travel and lodging benefit,consult with counsel aboutcompliance considerations,such as coverage and reimbursement limitations underERISA and the tax code,mental health parity and nonquantitative treatment limits,and privacy protections.Explore telemedicine,healthcare navigation assistance(e.g.,logis
232、tical support findinga provider and understanding plan coverage)and concierge services(e.g.,bookingappointments,travel and lodging options,or general member support),and reviewleave policies if seeking to support employees needing abortion care.Consult with counsel about current and future legal ris
233、ks associated with stateregulation of abortion.Discuss the extent to which a plan sponsor can rely on ERISApreemption as a defense to state laws or enforcement activity.Stay apprised ofemerging state legislation and court challenges.Confirm with medical and pharmacy vendors that plan participants ca
234、n access legallyprescribed and clinically appropriate medications(e.g.,drugs used for arthritis,ulcers,miscarriages,and Crohns disease that are also used for abortions)without interferencefrom pharmacists and pharmacies concerned about legal liabilities in states with abortionrestrictions.Law&Policy
235、 Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.19 Monitor the potential impact on employee health benefit plans from federal agenciesresponses to the presidents July 8 and Aug.3 executive orders to protect access toreproductive
236、 healthcare services.Review HHSs HIPAA privacy rule and disclosures of information relating toreproductive healthcare.Discuss with counsel the potential privacy issues related toabortion coverage and the group health plan.Review HHS guidance if offering any mobile health apps to employees,whethercon
237、nected to or separate from the group health plan.Consider expanding fertility coverage to individuals without a traditional infertilitydiagnosis.As part of DEI efforts,many employers are expanding fertility coverage toemployees,regardless of their marital status,gender or sexual orientation.In addit
238、ion,participants in the past year have brought discrimination claims against employer plans andstudent health plans requiring a traditional infertility diagnosis to access fertility benefits.Work with legal counsel,tax advisors and vendors to determine whether and how to taxemployees for fertility b
239、enefits.Fertility benefits can be excluded from an employeestaxable income only if considered medical care.IRS hasnt issued guidance addressingwhen fertility treatments are medical care,but an IRS private letter ruling(PLR)allowedthe deduction for sperm donation and freezing costs directly attributa
240、ble to the taxpayer.The few reported cases involving male taxpayers trying to conceive have foundexpenses related to egg donation,in vitro fertilization(IVF)and freezing are not tax-deductible.Consult a tax advisor if adding coverage for the storage of eggs,sperm or embryos.Evenfor employees with an
241、 infertility diagnosis,IRS Publication 502 indicates that“temporary”storage is tax-preferred,but IRS does not identify the point at which storage costsbecome taxable.Ensure compliance with the ACAs ban on annual or lifetime dollar limits for EHBs.Self-insured plan sponsors should remove dollar limit
242、s on fertility benefits or confirm thatfertility benefits arent considered EHBs under the selected state benchmark plan.Consider cycle limits as an alternative.Limit fertility benefits to group health plan enrollees,or discuss the risks of a stand-alonefertility benefit program with counsel.A stand-
243、alone fertility benefit program is a grouphealth plan that would likely violate ACA mandates(for example,by not coveringpreventive services without cost sharing).Ensure that any fertility point-solution complies with transparency requirements,to theextent applicable.Determine whether and how the ven
244、dor will provide in-network rates and out-of-network allowed amounts/billed charges for expanded fertility coverage and ensurethat such information is posted in machine-readable files(MRFs).(For moreinformation on the need for MRFs,see Group health plan transparency.)Determine whether and how to rep
245、ort the fertility vendors prescription drug andhealthcare spending information by Dec.27,2022(and annually by June 1Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.20thereafter).(For more information on this reporting
246、requirement,see Prescriptiondrugs.)Consider HSA/HRA issues.Ensure that fertility coverage doesnt cause an individual to lose eligibility to make orreceive contributions to an HSA.For example,an HRA that pays for fertilitytreatments before an individual reaches the HDHP deductible would be HSA-disqua
247、lifying coverage.In addition,an HRA should only reimburse fertility expenses that are medical care asdefined by the Internal Revenue Code,which can be difficult to determine.Review access to certain fertility services,such as IVF,in light of state abortion bansand emerging fetal personhood legislati
248、on.For example,abortion bans that start atconception and fetal personhood laws could create liabilities for disposing any fresh or frozenembryos.Work with counsel to ensure proper tax treatment of the surrogacy benefit programand to consider ERISA compliance issues.Favorable tax treatment may be ava
249、ilable for a limited set of surrogacy expenses namely,medical expenses for an employee or an employees spouse diagnosed asinfertile.Other surrogacy benefits are taxable income.Reimbursing a surrogates medical expenses could create a noncompliant ERISA grouphealth plan,as well as rights that the surr
250、ogate could enforce against the plan.Considerlimiting reimbursements to taxable nonmedical expenses(e.g.,legal and agency fees).Check for any international or state laws impacting fertility,adoption,or surrogacybenefits.For example,reimbursement of egg freezing or surrogacy expenses could violatesom
251、e international or state laws.Obtain the services of legal counsel or a vendor to assistwith tracking relevant laws and determining whether particular expense reimbursementsviolate international or state law.Review compliance considerations for adoption benefit programs.Confirm that any tax-advantag
252、ed adoption benefit complies with IRC Section 137requirements.For 2023,up to$15,950(less for high-income employees)of qualifyingadoption expenses per eligible child may be excluded from an employees income,ifthose expenses are paid by an adoption assistance program that satisfies Section 137.Program
253、 requirements include a written plan document,employee notice and compliancewith nondiscrimination rules.Section 137 does not permit reimbursements to pay forsurrogacy arrangements,adoption of a stepchild,or expenses in violation of a state orfederal law.If providing adoption benefits beyond what Se
254、ction 137 permits,work with a taxadvisor to make sure that employees are taxed appropriately.Consult with counsel to ensure proper administration of benefits offered on an after-tax basis(e.g.,travel and lodging,fertility,adoption,or surrogacy benefits).Determine whether such expenses are deductible
255、.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.21Consider whether taxable reimbursements increase hourly wages for overtime,vacationand other employment-related purposes.Decide whether to“gross up”employees for withh
256、eld taxes and how to ensurecompliance with deferred compensation rules and the constructive receipt doctrine.Determine how to handle sensitive information,given that HIPAA would presumably notapply to a post-tax(i.e.,non-health)benefit program.Review contraceptive coverage in any nongrandfathered he
257、alth plan to ensurecompliance with the ACAs preventive services mandate.In 2022,the agencies renewedtheir focus on ACA-mandated contraceptive coverage,issuing January and July FAQs,aswell as a June 27 letter to plan sponsors and insurers.(For more details on this ACAmandate,see Preventive services.)
258、Review transgender coverage,and analyze whether limits or exclusions ontransgender benefits violate Title VII of the 1964 Civil Rights Act(Title VII),ACASection 1557,MHPAEA,the Americans with Disabilities Act(ADA)or any state law.Review the increasing number of successful court challenges under Titl
259、e VII againstplans with limited transgender coverage(for example,an exclusion of mastectomies forgender dysphoria).Consider whether ACA Section 1557s ban on sex discrimination requires offering orexpanding transgender coverage.Since 2016,regulations and litigation have shaped(and reshaped)the scope
260、of Section 1557.Few group health plans are currently subjectto Section 1557,but proposed rules,if finalized,would touch many more employer-sponsored health plans.Under the proposed rules,Section 1557 would apply to alloperations of any health insurer or TPA that receives HHS funds and would includep
261、rotections for gender-affirming care.Review any exclusions or limits on the plans coverage of gender dysphoria treatmentand services(including gender affirmation surgery)for compliance with MHPAEA andany applicable state parity laws.Exclusions of transgender services regardless ofmedical necessity a
262、re NQTLs on a mental health condition that should be analyzed forparity with medical/surgical benefits.(For more information,see Mental health parity).Review any exclusions or limits on the plans coverage of gender dysphoria treatmentand services for ADA compliance.A recent opinion by the 4th US Cir
263、cuit Court ofAppeals held for the first time that gender dysphoria can be a disability entitled to ADAprotections(Williams v.Kincaid,No.21-2030(4th Cir.Aug.16,2022).The ADAconsiders group health plan limits or exclusions to be disability-based if theydisadvantage only or almost only employees with d
264、isabilities.Compare health plan coverage of gender dysphoria against the recently released version8 of the World Professional Association for Transgender Health(WPATH)guidelines.For churches and employers with religious objections to covering same-sex spousesor transgender services,consult legal cou
265、nsel about the risks of these exclusions andpotential exemptions.Monitor regulatory developments and legal challenges.A recently proposed Section 1557 rule would,if finalized,permit recipients of HHSfinancial assistance to raise conscience and religious freedom objections with HHSsLaw&Policy Group|G
266、RISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.22Office of Civil Rights,which must promptly consider the objection and stay enforcementefforts during such consideration.At least one court has rejected arguments that a religious organiz
267、ation should be exemptfrom Title VII and ruled in favor of an employee challenging an exclusion of same-sexspouses.However,another court has prohibited HHS from enforcing Section 1557s banon discrimination against a religious organization that excluded transgender and abortioncoverage from its group
268、 health plan.Related resourcesLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.23Section 6Surprise billingActionConfirm plan administrators are complying with the ban on surprise billing foremergency services,air ambula
269、nces and certain nonemergency services covered bythe NSA.Verify that emergency services are covered to the extent required by theNSA,and plan documents have corresponding updates.Make sure plan documentsalso contain the necessary cost-sharing information for all services protected by theNSA.Confirm
270、the latest required surprise billing notice is posted on a public websiteand included with EOBs.Review IDR frequency and outcomes.Consider theappropriateness of additional vendor fees related to surprise billing compliance and/orany shared-savings program charges.Specific stepsConfirm plan administr
271、ators are properly identifying and adjudicating claims subjectto the NSA.The NSAs surprise billing protections against out-of-network cost sharing andprovider balance-billing apply to claims for(i)emergency care(including ancillary services)received at an out-of-network facility or at an in-network
272、facility from an out-of-networkprovider;(ii)out-of-network nonemergency services at an in-network healthcare facility(unless written consent obtained);and(iii)air ambulance services from out-of-networkproviders.Determine which plans are subject to the surprise billing rules.The rules apply broadly t
273、o grandfathered and nongrandfathered group health plans,as well as federal and nonfederal governmental plans,certain church plans,so-called“grandmothered”or transitional plans,and individual policies(including student healthinsurance).The rules dont apply to excepted benefits,retiree-only plans,shor
274、t-term limited-duration insurance,or HRAs and other account-based plans.Confirm that plan administrators are calculating cost-sharing amounts for these protectedservices in compliance with the law and rules.Plan participants cannot be charged more than they would be for in-network services,even if t
275、he plan has no out-of-network coverage.Cost sharing is typically based on the qualifying payment amount(QPA),which isgenerally the plans or issuers median contracted rate as of Jan.1,2019,adjustedfor inflation.Plans with no network and no median contracted rate(e.g.,reference-based pricingplans)gene
276、rally must use an eligible database to determine the QPA for emergencyservices and air ambulance services.Law&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.24 The NSAs surprise billing protections do not apply to out-of-
277、networknonemergency services provided at a participating healthcare facility when theplan doesnt have a network of participating healthcare facilities.The cost-sharing amount must count toward any in-network deductible or out-of-pocket maximum.Confirm plan administrators are timely providing the ini
278、tial payment(or a denialnotice)with required disclosures to nonparticipating providers.Plans have only 30calendar days to send the initial payment with required disclosures or a denial notice.The 30-day period begins when the plan receives a“clean claim,”which is theinformation necessary to adjudica
279、te the claim.The initial payment should be the payment in full based on relevant facts andcircumstances and plan terms;it doesnt have to be equivalent to the QPA.When cost sharing is based on the QPA,the initial payment(or denial notice)mustinclude:The QPA for each item or service A certification th
280、at the QPA applies when determining cost sharing A statement about the opportunity for a 30-day negotiation period,followed by IDR todetermine the total payment,if necessary Contact information to initiate a negotiation period If the service codes or modifiers on the claim change and result in a low
281、er reimbursement(i.e.,down-coding),additional disclosures must accompany the initial payment:A statement indicating whether the QPA is based on the down-coded service code ormodifier An explanation and a description of the codes and modifiers adjusted The QPA without the down-coding Confirm that whe
282、n payment is denied,plan administrators are including an explanationwith the denial notice.Verify that plan administrators are accepting the standard open-negotiation notice fromout-of-network providers and facilities.Plan administrators may encourage the use of anonline portal for submission of nec
283、essary or supplementary information but cannotrequire this to initiate the negotiation period.Confirm emergency services are covered to the extent required by the NSA,andreview plan documents(including SPDs and SBCs)for coverage terms.If anyemergency services are covered,both grandfathered and nongr
284、andfathered plans mustcover all emergency services and comply with surprise billing protections.The NSA definesemergency services to include items and services needed to screen,treat and stabilizesomeone with an emergency medical condition,including routine ancillary services neededfor evaluation an
285、d post-stabilization items and services(which include outpatient observationor inpatient/outpatient stay when provided with the emergency services).Services providedLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.25in
286、hospital emergency departments and independent free-standing emergency centers areincluded,as are services provided in urgent care centers and behavioral health crisisfacilities that are licensed by the state to provide emergency services for an emergencymedical condition.Verify that coverage is not
287、 limited by plan terms or conditions(other than a coordination-of-benefits provision,a permissible waiting period or cost-sharing requirements).Makesure out-of-network providers arent subject to administrative requirements or benefitlimitations more restrictive than those applied to in-network emerg
288、ency service providers.Confirm coverage of post-stabilization services as emergency services,unless themember consents to the out-of-network care and agrees to balance billing after propernotice,among other requirements.Confirm coverage of emergency services without prior authorization for both in-n
289、etworkand out-of-network providers and facilities.Make sure plan administrators are making external reviews available for NSAcompliance matters.The ACAs external review requirement for adverse benefitdeterminations now applies to all NSA-protected claims,including those handled bygrandfathered plans
290、 otherwise exempt from this ACA requirement.Adverse benefit determinations related to NSA compliance include the cost-sharing andsurprise billing protections for emergency services and care provided by nonparticipatingproviders at participating facilities,as well as the requirement that claim coding
291、 accuratelyand correctly reflects treatments received and the associated NSA protections.Confirm the latest required surprise billing notice is posted on a public website andincluded with EOBs.The notice must use plain language and contain information aboutbalance-billing restrictions,applicable sta
292、te and federal protections,and contact informationfor an appropriate state and federal agency in the event a provider or facility violates thebalance-billing restrictions.Confirm the revised model notice(version 2)is used for plan and policy years beginningon or after Jan.1,2023,for good-faith compl
293、iance with the disclosure requirement.If the plan doesnt have a public website,make sure a written agreement is in place withthe TPA to post the notice on the public website where the TPA normally makesinformation available to participants,beneficiaries and enrollees on the plans behalf.Verify that
294、the notice does appear on the TPAs public website.Make sure the notice contains information on applicable state laws;however,informationon all state balance-billing laws is not required.Review IDR frequency and outcomes,and consider the appropriateness of additionalvendor fees related to surprise bi
295、lling compliance and/or any shared-savings programcharges.Consider including performance guarantees related to compliance with the surprise billinglaw and rules insurer policies and TPA contracts.Weigh whether to include performanceguarantees related to IDR frequency and outcomes.Agencies report an
296、unexpectedly high volume of IDR claims.As of Aug.11,2022,more than 46,000 disputes were initiated,with payment determination rendered inLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.26over 1,200.In nearly half of all
297、 disputes,the noninitiating party argued that thedispute was ineligible for IDR,and over 7,000 have been found to be ineligible.Watch for additional regulations and agency guidance on the NSAs surprise billingprovisions.Ongoing litigation challenging parts of the NSAs implementing regulations could
298、forcemore changes.Final regulations issued in August 2022 revise certain aspects of interim finalregulations issued in July and October 2021 to reflect comments received and theoutcome of earlier litigation.New cases are challenging portions of the final regulations,while some challenges tothe inter
299、im final rules are ongoing.To determine the need for additional guidance,agencies continue to collect comments,monitor plans and issuers compliance with the NSA implementing regulations,andevaluate how parties to a payment dispute interact during the open-negotiation period.Related resourcesLaw&Poli
300、cy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.27Section 7State-mandated paid leave andother state law trendsActionTrack state legislation and regulations affecting benefits,including paid leaverequirements,health plan report
301、ing obligations,PBM restrictions(see Prescriptiondrugs for more details)and telehealth mandates.Work with insurers and vendors toensure compliance with new coverage mandates,and evaluate cost increases.MonitorERISA preemption litigation that may impact state laws affecting employee benefitplans.Spec
302、ific stepsEvaluate current PFML,accrued paid sick leave,and other leave benefits againstrelevant state and local mandates,and revise plans as needed.Review general leave strategy.If operating in multiple states,consider developing along-term strategy to provide PFML and sick leave parity across juri
303、sdictions that havewidely differing benefit amounts,accruals and eligibility rules.In particular,a number ofstate laws define“family member”more broadly than the federal Family and MedicalLeave Act(FMLA)to include any designated person in the equivalent of a familyrelationship.Monitor PFML guidance
304、in states with new laws.Watch for regulations and rules instates where benefits and/or contributions have not yet begun:Colorado,Delaware,Maryland and Oregon.Check for PFML guidance in jurisdictions with revised requirements.Address what,if any,modifications will be needed to comply with expanded re
305、quirements inConnecticut,Massachusetts and Washington,DC.Adjust for PFML rate changes.Adjust systems and payroll deductions as needed toaccommodate changes in PFML rates for 2023.Track states considering PFML programs.Keep track of states that may add PFMLinsurance programs,including Hawaii,Illinois
306、,Louisiana,Maine,Minnesota,Vermont,Virginia and Wisconsin.Monitor local paid sick leave mandates.Stay abreast of local jurisdictions(likeBloomington,MN,and West Hollywood,CA)that adopt paid sick leave requirements.Other localities may follow the example of San Francisco,where voters approvedProposit
307、ion G,which mandates up PHE leave in certain circumstances.Keep tabs on litigation involving Michigans paid sick leave law.Monitordevelopments related to Michigans paid sick leave law.A recent state court decision(currently stayed)would change accrued benefits and annual benefit caps,as well asLaw&P
308、olicy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.28eliminate a small employer exception for employers with fewer than 50 employees(Mothering Justice v.Nessel,No.21-000095-MM(MI Cl.Ct.July 19,2022).Track bereavement leave law
309、s.Watch for additional states to follow the lead of Illinoisand California in adopting bereavement leave laws that go beyond an employerstraditional program or policy.Review processes for complying with group health plan reporting obligations andassessments,and new long-term care(LTC)requirements.Co
310、mplete individual mandate reporting.California,Massachusetts,New Jersey,Rhode Island,Vermont and Washington,DC,require group health plan reporting.Massachusetts has two requirements:the Health Insurance Responsibility Disclosure(due Nov.15)and Form MA 1099-HC(due Jan.31).State time frames for indivi
311、dualmandate reporting typically(but not always)match ACA deadlines.Submission of Form1095-C usually(but not always)will suffice.Stay abreast of changes from prior years.Comply with group health plan assessments and reporting.Ensure ongoingcompliance with group health plan assessments in New York(Hea
312、lth Care Reform ActCovered Lives Assessment(CLA),Washington(Partnership Access Lines CLA),andSan Francisco(Health Care Security Ordinance Annual Reporting Form and the HealthCare Accountability Ordinance(applicable to city and county contractors).Prepare for Washingtons LTC law.Washingtons LTC law(W
313、A Rev.Code Ch.50B.04,as amended by two later laws:2022 Ch.1,HB 1732 and 2022 Ch.2,HB 1733)requiresemployee contributions via payroll deduction,starting July 1,2023.Exemptions areavailable to employees who want to avoid these contributions.Payments and quarterlyreports are due to the Employment Secur
314、ity Department by the last day of the monthafter each calendar quarter ends.As states address telehealth access,consider expanding telehealth benefits,especially for behavioral health.Track states joining behavioral health compact.Use of telehealth for mentalhealthcare may increase since more than h
315、alf of all states participate in the PsychologyInterjurisdictional Compact(PSYPACT),an initiative that facilitates cross-state practice oftelepsychology and temporary in-person,face-to-face psychology.Watch for post-COVID-19 telehealth contraction.Stay abreast of state legislative andregulatory effo
316、rts to undo telehealth gains made during the COVID-19 pandemic.Thesedevelopments will likely center on fully insured plans but could impact the generalpractice of medicine within a state,which would affect self-funded plans.Issues includeinterstate licensure,the ability to prescribe medications,requ
317、irements for“hot handoffs”to an in-person provider and the circumstances that establish a provider-patientrelationship.Confirm with insurers how state coverage mandates affect fully insured coverage.Review the potential impact on premium rates.Discuss the premium cost impact(ifany)of new coverage re
318、quirements,such as insulin cost-sharing caps(for example,inLouisiana,Maryland,Oklahoma,Oregon and Washington),fertility benefits,gender-affirming care,mental health parity changes,surprise billing,required testing,expandedeligibility,and other new or expanded health coverage mandates.Law&Policy Grou
319、p|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.29Consider extraterritorial issues.Confirm the plans state of issue(situs),and determinewhether new insurance provisions apply on an extraterritorial basis and impact anyinsured plan co
320、vering employees in those states,even if the plan is sitused elsewhere.Abortion coverage and restrictions will almost certainly be touchstone issues as statelaws develop in the post-Dobbs era.Monitor federal court rulings that involve ERISA preemption.Pay attention to ERISA-based challenges to state
321、 laws that extend to self-fundedplans.Recent court rulings on ERISA preemption challenges to PBM laws(seePrescription drugs)have upheld the state laws.New and recent abortion laws ifapplied to group health plans are likely to raise ERISA preemption issues.Forexample,ERISA generally preempts state ci
322、vil remedies imposed against a plan sponsorbut would not preempt state insurance laws or criminal statutes of general application.Monitor pending US Supreme Court petitions.Look for developments on ERISApreemption,particularly the ERISA Industry Committee(ERIC)litigation concerningERISAs preemption
323、of a Seattle healthcare ordinance for hotel industry employers.The ordinance survived an ERISA preemption challenge in the 9th US Circuit Court ofAppeals(ERIC v.Seattle,No.20-35472(9th Cir.March 17,2021).A decision onERICs petition for writ of certiorari should occur in late 2022 or early 2023.If th
324、eSupreme Court takes up the case,a decision might be issued by July 2023.A win forSeattle might encourage other similar state and local mandates,a concern foremployers with fully insured and self-funded plans.Another pending petition involves life insurance proceeds(Ragan v.Ragan,No.21-1571(CO App.F
325、eb.14,2022).Relying on 9th Circuit precedent,Colorados Court ofAppeals held that ERISA preempts a post-distribution claim for life insuranceproceeds under the states domestic relations law.Other federal appeals courts toaddress the issue have found that ERISA does not preempt claims brought understa
326、te laws challenging distribution of ERISA plan proceeds.Related resourcesLaw&Policy Group|GRISTTop 10 compliance issues for health and leave benefits in 2023Copyright 2022 Mercer LLC.All rights reserved.30Section 8Preventive servicesActionConfirm nongrandfathered group health plans cover all ACA-req
327、uired in-networkpreventive services without cost sharing.Modify 2023 benefits for the latest ACAguidance and any new or updated USPSTF,HRSA and ACIP recommendations,including coverage of“qualifying coronavirus preventive services.”Determine thestarting age for mandated coverage of breast cancer scre
328、ening without cost sharing.Ensure coverage of all ACA-mandated womens contraceptives,unless the employerhas religious or moral objections to contraceptives.Monitor litigation that could spareemployer plan sponsors with religious objections from covering PrEP HIV medicationsand all nongrandfathered g
329、roup health plans and insurers from covering ACA-mandated USPSTF-recommended preventive services without cost sharing(Braidwood Mgmt.Inc.v.Becerra,No.4:20-cv-00283-O(ND TX Sept.7,2022).Tracklitigation that could require group health plans and insurers to continue coveringinstruction in fertility awa
330、reness-based methods(Tice-Harouff v.Johnson,No.6:22-cv-201-JDK(ED TX Aug.12 2022).Update official plan documents,SPDs,SBCs andother materials as needed.Specific stepsUpdate a nongrandfathered group health plans preventive services covered withoutcost sharing for the latest ACA guidance and any new o
331、r revised USPSTF,HRSA andACIP recommendations.Coverage generally must conform for plan years that begin on or after the one-yearanniversary of the date when a preventive care recommendation or guideline was issuedor updated.However,group health plans must cover new COVID-19 vaccines and otherprevent
332、ive items or services within 15 business days after an ACIP recommendation or aUSPSTF A or a B recommendation.October 2021 FAQ guidance clarified that the 15business days is measured from Dec.12,2020,the date the CDC adopted the ACIPsrecommended use of particular COVID-19 vaccines within the scope o
333、f the emergencyuse authorization(EUA)or the biologics license application(BLA).As a result,effectiveJan.5,2021,group health plans must“immediately”cover any new COVID-19 vaccineonce authorized under an EUA or approved under a BLA by the FDA.A USPSTF recommendation or guideline is considered to be issued on the last day of themonth when released or published.The issuance date of an ACIP recommendat