By: Kelly Dempsey, Esq.
In case you haven’t heard, the Employee Benefits Security Administration (EBSA) released Disaster Relief Notice 2021-01 on Friday, February 26th to address statutory language in section 518 of Employee Retirement Income Security Act of 19745 (ERISA) and section 7508A(b) of the Internal Review Code (the Code). In plain English, the statutes place a one year limit on the authority originally used to create the “Outbreak Period” – meaning by statute, the tolling of timeframes cannot exceed one year. Since Friday, Phia has received a large amount of questions related to this Notice and what it really means for plans. Phia has certainly read and re-read the Notice to determine what this means for self-funded plans and all the players in the self-funded industry. Unfortunately, some of the examples in the Notice fall short of the guidance we would have expected. We have reached out to the DOL seeking clarification on some other potential fact patterns that we know exist.
In the meantime, we have re-reviewed plan language that we crafted to accommodate all of the COVID-19 related rules and guidance and have made some small adjustments. As things develop, of course there is the potential for more changes.
The Notice does indicate that plans and their claims administrators (or other vendors) may need to reissue or amend any notices that were previously issued to plan participants that did not include accurate information regarding the time in which participants and beneficiaries are required to take action. It also indicates plans should affirmatively send notice to plan participants and beneficiaries.
With that said, the EBSA puts a great emphasis on providing relief to plan participants and their beneficiaries and the undertone suggests that plans should keep this mindset of acting in a manner than is favorable to plan participants. The Notice goes on to specifically say that plans and fiduciaries should act “in good faith and with reasonable diligence under the circumstances.”
The application of the rules and statutory language will no doubt have to be carefully applied on a case by case basis and there will be no shortage of fact patterns that will arise. As always, Phia is here to help navigate these rough waters for plans and their administrators in the self-funded space.
Join Timothy Pope, an Attorney in the Provider Relations Department, and Garrick Hunt, Phia’s Sales Manager, as they host a candid discussion about the harmful effects that the sweeping lockdown has had on families, and in particular on children with disabilities. Since the closing of most public schools, many children with disabilities have suffered immensely. As a parent of a child with mental disabilities, Garrick dives into his first-hand account of the lockdown’s impact on his family.
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Join The Phia Group to learn from the past, and plan for the future! In this webinar, The Phia Group will both examine what has happened as well as predict what is to come, as they help you identify what needs to be done to ensure the best possible outcomes for this coming year. They will discuss President Biden’s first month in office, identify whom he has appointed for key roles (and examine their track records on healthcare), as well as dissect the issues that were most relevant in 2020 – ensuring we learn from both the victories and losses of the year that has ended.
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In this episode of the Empowering Plans podcast, Nick and Brady talk through some developing trends in ERISA litigation. Do fiduciary duties apply to the protection of plan data? Could a data breach lead to claims under ERISA and HIPAA? What steps do ERISA fiduciaries need to take? Listen in as we explore where things stand, and where they might be heading.
By: Nick Bonds, Esq.
Among the compliance headaches nestled within the Consolidated Appropriations Act, 2021 (“CAA”), few have inspired more anxiety than Sec. 203 “Strengthening Parity in Mental Health and Substance Use Disorder Benefits.” With such little guidance and the shockingly early effective date (February 10, 2021), many self-funded groups are understandably alarmed that this CAA expansion of mental health parity compliance will get them in hot water with the DOL or HHS.
Granted, depending on the design of the health plan in question, and the types of limitations the group has imposed on their MH/SUD benefits, conducting and documenting this comparative analysis could be a daunting, labor-intensive task. Even so, it is worth noting that the February 10 date is not the deadline for plans to turn in their analysis – the documentation that a group has performed this analysis isn’t a filing that groups are required to hand in by a set calendar date. This analysis must only be disclosed to the DOL or HHS upon request by the regulators, and the regulators are required to request analyses from a minimum of 20 plans per year – the overwhelming majority of plans will likely not be asked to submit anything at all.
Furthermore, once a plan submits its documentation and analysis it will be on the regulators to review the information provided to determine if the group is not in compliance, at which time the plan will have 45 days to complete a new analysis and provide the regulators with their action plan for getting the group on the right track. The CAA itself is frustratingly sparse on detail, but it does list the following required information:
Of course, every plan subject to the MHPAEA will be best served by having their NQTL comparative analysis and documentation in order as soon as possible. Unfortunately, the DOL and HHS have yet to release comprehensive guidance on how to comply with this comparative analysis requirement. All we can say with certainty right now is that this analysis will likely require a fair amount of coordination between many facets of a plan’s administration, including claims processing, legal/compliance, PBMs, TPAs, and other vendors just to name a few. The DOL has in the past made other materials available that can provide a useful starting point, particularly the recently updated MHPAEA Self-Compliance Tool and the DOL’s “Warning Signs” checklist.
While neither of these documents perfectly align with the new analysis required under the CAA, these documents should give plans and administrators at least a baseline idea of the types of NQTLs that may receive the most scrutiny from the DOL. The CAA requires the regulators to finalize more extensive guidance and regulations within the next 18 months. While we keep our eyes out for that, plans with any of those NQTLs currently in place can start their analysis here.
In this episode of Empowering Plans, join Brady Bizarro and Jen McCormick as they have a conversation about the impact of COVID-19 on employers, health plans, and employees. How should employers be dealing with mental health, physical health, and productivity issues? What steps can health plans take to reduce claims exposure? How are employers planning to return to the office later this year? It may feel like Groundhog Day, but our advice is certainly not more of the same.
By: Andrew Silverio, Esq.
In December 2020, the Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) released the findings of an extensive audit of Covered Entities and Business Associates, performed in 2016 and 2017 for compliance with various HIPAA requirements. This data, available at https://www.hhs.gov/sites/default/files/hipaa-audits-industry-report.pdf, provides valuable insight into what Covered Entities are doing right, and what they’re doing wrong, when it comes to HIPAA compliance (of the Covered Entities audited, 90% were health care providers, 9% were health plans, and 1% were health care clearinghouses).
Rather than a general audit for compliance with all of HIPAA’s requirements, the audit focused on seven provisions. It looked at compliance with the notice of privacy practices and content requirements, provision of notice – electronic notice (website posting), and right of access requirements (from the Privacy Rule), the timeliness of notification and content of notification requirements (from the Breach Notification Rule), and the security management process – risk analysis and risk management requirements (from the Security Rule). For Business Associates, the scope of the audit was more narrow, focusing only on the notification by a business associate requirements (from the Breach Notification Rule), and the security management process – risk analysis and risk management requirements (from the Security Rule).
Overall, the audit found that compliance with requirements that come into play after a security issue or breach occur, such as breach notification requirements, is generally good. Compliance with the requirement to make the applicable Notice of Privacy Practices online was also good. However, the results were less positive in regard to other requirements which represent more of the “groundwork” in setting up proper safeguards and procedures. For example, “… OCR also found that most covered entities failed to meet the requirements for other selected provisions in the audit, such as adequately safeguarding protected health information (PHI), ensuring the individual right of access, and providing appropriate content in their NPP. OCR also found that most covered entities and business associates failed to implement the HIPAA Security Rule requirements for risk analysis and risk management.”
These findings make sense from an intuitive standpoint – it’s easy to simply not think about HIPAA’s requirements until a problem arises. However, this audit underscores the importance of creating proper safeguards proactively – doing so can result in less damage when and if a breach occurs, both financially and when it comes to preserving client and participant good will.
For Immediate Release
Canton, MA – Energage Names The Phia Group, LLC a Winner of the 2021 Top Workplaces USA Award.
Today The Phia Group announced that it has earned a 2021 Top Workplaces USA award, issued by Energage. Energage, an organization that develops solutions to build and brand a vast array of companies, leveraged their 14-year history of surveying more than 20 million employees across 54 markets, to award this prize during what is the prestigious honor’s inaugural year.
Earning this accolade was no small task. Several thousand organizations from across the country were invited to participate, and winners of the Top Workplaces USA were chosen based solely on employee feedback gathered through an employee engagement survey, issued by Energage. These results were then calculated by comparing the survey’s research-based statements, including 15 Culture Drivers that are proven to predict high performance against industry benchmarks.
“The Phia Group’s mission is to reduce medical costs and improve the quality of health care. That mission starts and ends with our people. Our job is to help other employers secure the best benefits for their employees and families; it behooves us to do the same for our own team,” The Phia Group’s CEO, Adam Russo, remarked. “This award is proof that our focus on benefits, opportunities, and general employee satisfaction is not misguided. While employee satisfaction is valuable in and of itself, it is equally important as a crucial element of improving our company’s overall value. If our team doesn’t share our passion or buy into our principles, that reflects in the work product. Employer success is therefore built upon a foundation of employee success. By emphasizing an atmosphere of employee satisfaction, we generate better outcomes, satisfied clients and success for all.”
To learn more about The Phia Group, what it is doing to empower plans and enable all employers to be best places to work, please contact Garrick Hunt by email at email@example.com or by phone at 781-535-5644.
About The Phia Group:
The Phia Group, LLC, headquartered in Canton, Massachusetts, and with offices in Hartford, Boise, and Louisville, is an experienced provider of health care cost containment techniques offering comprehensive claims recovery, plan document and consulting services designed to control health care costs and protect plan assets. By providing industry leading consultation, plan drafting, subrogation and other cost containment solutions, The Phia Group is truly Empowering Plans.
Making the world a better place to work together.™
Energage is a purpose-driven company that helps organizations turn employee feedback into useful business intelligence and credible employer recognition through Top Workplaces. Built on 14 years of culture search and the results from 22 million employees surveyed across more than 66,000 organizations, Energage delivers the most accurate competitive benchmark available. With access to a unique combination of patented analytic tools and expert guidance, Energage customers lead the competition with an engaged work force and an opportunity to gain recognition for their people-first approach to culture. For more information or to nominate your organization, visit energage.com or topworkplaces.com.
By: Philip Qualo, J.D.
Life as we know it came to a halt in February of last year due to the quick and vicious spread of the COVID-19 virus. Although the US has made significant strides in slowing the spread, and pharmaceutical companies have manufactured vaccines, employees across the country continue to struggle with the realities of working from home. Whether due to stress associated with juggling work and family within an eight-hour workday at the kitchen table, or the inherent loneliness of performing job functions without peers or colleagues to interact with, working remotely and isolation orders have taken a toll on the American psyche. COVID-19 continues to be an uncertain, ever-evolving reality, and its impacts are particularly being felt among those with addiction and those in recovery from substance use disorders. As a result, health plans are already experiencing an influx of costly claims associated with substance abuse.
In order to combat the spread of the virus, the government, the media, and even our employers have told us “stay at home”. The bars and restaurants we frequented are all shut down, or only accessible via curbside pickup. Although these orders are intended to enhance public and workplace safety, complying with these orders has presented unique challenges for people with substance use disorders and in recovery. The stress from social isolation and other COVID-19 related life changes can lead to or worsen substance use and abuse. Widespread shutdowns and social distancing mandates have made it difficult for those seeking guidance and treatment for substance abuse issues to secure resources. Because of this, the US has experienced a surge in alcohol sales and drug addiction relapses as substance abuse becomes more prominent.
In the 12 months prior to May 2020, the US recorded 81,230 drug overdose deaths, an 18.2% increase over the previous 12-month period, according to the Centers for Disease Control and Prevention. The CDC announced this past December that overdose deaths had already accelerated in the months before COVID-19 came to the U.S., but had sped up even more during the pandemic. The rationale is before the pandemic; employees didn’t have much opportunity to do drugs or drink while working in an office location. With remote work, they are even more isolated from society and nobody is around to see them drinking or taking drugs.
It is common knowledge that substance abuse costs employers a lot of money every year in the form of healthcare treatments and missed work. These costs are dramatically increasing, however, due to the inevitable feelings of isolation and despair inherent in isolation that can lead to substance abuse disorders. More importantly, there are also health risks resulting from chronic substance abuse as it weakens the immune system and puts stress on the body’s cardiovascular and respiratory systems. All of these factors combined equal a rapidly escalating and expensive problem for employer-sponsored health plans. This is especially troubling as health plan expenditures are already expected to rise in 2021 due to Americans foregoing preventive care in 2020 out of fear of catching the virus in healthcare settings.
There is no question that social distancing and stay-at-home orders are a necessity at this time due to soaring infection rates. It is important, however, to keep sight of the larger picture when assessing the toll of this pandemic on Americans and our health plans that goes far beyond the illness itself. COVID-19 has dropped a grenade on our efforts to combat substance abuse disorders, and as a result, health plans can expect to carry the hefty price tag. Some strategies plan sponsors may want to consider to reduce the impact on their own workforce is to offer programs to help plan participants overcome and prevent substance abuse. These programs may include an employee assistance program, narcotics therapy management programs, and designated centers of excellence for substance use.
In this episode of the Empowering Plans podcast, Ron and Brady discuss the inauguration of President Biden and what his presidency could mean for healthcare policy. With Democrats in control of government, a lot could get done in the first 100 days - on COVID-19 relief, the ACA, and rolling back Trump-era rules. Join us as we break it all down.