In this episode of Empowering Plans, Ron and Brady are joined by Attorney Nick Bonds to discuss the 2020 election results. For now, it looks like we will have a new president in 2021. What will that mean for the healthcare industry? If the Senate stays in Republican control, is a public option likely? Will Obamacare be replaced? What will happen to popular issues such as prescription drug reform and surprise billing bans? We are covering all of the angles and breaking down all of the possibilities.
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In this episode, Ron Peck and Brady Bizarro guide you through a chaotic week for healthcare news. What did we learn (if anything) from the first presidential debate? With COVID-19 infecting the President and much of the West Wing, what can we learn from the President’s experimental treatment? Would self-funded plans cover this treatment? What impact could all of this have on the Affordable Care Act lawsuit? Join us to find out!
Election season is underway. The future of healthcare will be decided via the ballot box, court rooms, and congressional halls. Pandemic or no pandemic, the gears of democracy are turning and what happens now will have long term effects for us all. Join The Phia Group as they discuss the most important elections (including candidates’ positions on health), ongoing legal cases, and proposed laws. They will dissect each and provide you with not only thoughts on how they may impact us, but how we can best prepare for likely outcomes.
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The COVID-19 pandemic has brought about an unprecedented wave of federal legislation in a short period of time specifically aimed at regulating employer-sponsored group health plan coverage. Similarly, the Internal Revenue Service (IRS) has followed suit and released several formal Notices aimed at extending COVID-19 relief options to cafeteria plans. In the most recent notice issued by the IRS, however, IRS Notice 2020-29, there are certain provisions that impact employer-sponsored coverage. If adopted by a cafeteria plan sponsor that also sponsors a self-funded health plan, these provisions can result in significant cost liability for the plan and create issues for stop-loss reimbursement.
Nick Bonds, Esq.
As the Supreme Court of the United States wraps up its first full term with Associate Justice Brett M. Kavanaugh rounding out the Roberts Court’s conservative majority comes to a close, we have a number of high-profile opinions to dissect.
In addition to the customary tumult baked into an election year, this SCOTUS session deliberated while the coronavirus pandemic raged and the resurgent wave of Black Lives Matter protests swept the nation and the world. Amidst this background, the Court delivered opinions on issues as wide-ranging and politically charged as presidential powers, Native American sovereignty and land rights, faithless elector laws and the Electoral College, and Dreamers and immigration law. Of particular interest to employers and sponsors of health plans, were decisions regarding abortion rights, contraception coverage, and protections for gay and transgender employees. These latter cases will claim our spotlight for now.
In June Medical Services v. Russo, the Court struck down a Louisiana abortion law that was virtually identical to the Texas law it previously struck down in the 2016 case Whole Woman’s Health v. Hellerstedt by a margin of 5-3. The Louisiana law, like the Texas law before it, required doctors performing abortions to have admitting privileges at nearby hospitals, but had the effect of shuttering nearly every abortion provider in the state. In the 2016 case, a majority of the Court held that the law placed an undue burden on access to abortion. Chief Justice John Roberts dissented in the 2016 decision, and supporters of the Louisiana law hoped that the new lineup on the Supreme Court’s bench would deliver them a victory this term. Chief Justice Roberts disappointed them, however, relying on the legal principal of stare decisis and falling back on the precedent established by the 2016 case to rule against the nearly identical Louisiana law in a 5-4 decision.
The Court’s big case on contraception coverage was the culmination of a seven-year legal battle known as Little Sisters of the Poor v. Pennsylvania. In a 7-2 (arguably a 5-2-2) decision, the Supreme Court upheld a regulation from the Trump administration that essentially exempted employers who cite religious or moral objections from the Affordable Care Act’s contraceptive coverage mandate. Writing for the majority, consisting of the Court’s conservative bloc, Justice Clarence Thomas held that the Trump administration was acting within its authority to provide exemptions for employers with “religious and conscientious objections.” Justices Elena Kagan and Stephen Breyer agreed with their conservative colleagues that the Trump administration had the authority to create these exemptions, but they reasoned that lower courts should examine whether the decision was “arbitrary and capricious” and invalid under the Administrative Procedure Act. Justice Ruth Bader Ginsburg, joined by Justice Sonya Sotamayor, wrote a fiery dissent, arguing that the Court failed to balance religious freedom with women’s health. As a result of the Court’s ruling, employers objecting to the coverage of contraceptives on religious or conscientious grounds may decline to cover contraceptives for their employees, and the Obama-era accommodation process that would still allow employees to access contraceptives without cost-sharing, is now optional.
Lastly, in a 6-3 decisions, the Court ruled that the Civil Rights Act of 1964 protects gay and transgender workers from discrimination in the workplace. Justice Neil Gorsuch wrote in Bostock v. Clayton County that Title VII of the Civil Rights Act prohibits employers from firing their workers for being gay, bisexual, or transgender. Justice Gorsuch took pains to make clear that the Court’s decision in Bostock was specifically targeted on Title VII and no other federal laws prohibiting discrimination “on the basis of sex,” but the Court’s rationale here will almost certainly echo into other litigations debating the application of that key phrase in other areas of law. Though the issue in Bostock was the hiring and firing of LGBTQ employees, the case has implications for employer’s health and benefit offerings and is likely to be at the heart of future litigation in this arena.
All of these rulings will be making their effects felt over the coming months, both practically and politically. We are here to help and ready to answer any questions stemming from these decisions.
As the economy suffers, our industry is impacted when employers furlough employees or implement layoffs, as well when employers can no longer afford to offer benefits or continue operations. Fewer benefit plans, fewer plan participants, and dramatic changes in claim type and volume are certain, leaving health benefits at risk during a time when they are most needed. Yet, there are those that are improving coverage, leveraging opportunities, and preparing to take advantage of the employer, employee, and claims growth likely to follow a lifting of stay-at-home orders. Join The Phia Group as they discuss ways administrators are extending benefits and taking care of those in need. From COBRA to workers' compensation, mandates to stop-loss, join us to discover innovative ways to conquer the challenges and come out on top.
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By: Kevin Brady, Esq.
The first time I read a Plan Document at The Phia Group, I saw a word that I am ashamed to admit, I did not quite understand. A short word, an odd word, but an important one nonetheless. The term “Incurred” can be found over and over in most Plan Documents and stop-loss policies. Little did I know, this term would come up, over and over again as I continued to review these documents.
With some variation in the language, the typical definition of the term establishes that claims are incurred on the date with which a service, supply, or treatment is rendered to a participant. Although this seems to be the standard, some Plans and policies provide that a claim is not incurred until it is submitted to the Plan or sometimes a claim may not be considered incurred until the Plan has issued payment on the claim.
An important consideration for Plan Administrators is that the Plan’s definition of this term should not conflict with the stop loss policy. When the Plan and the policy have conflicting definitions, it may give rise to a number of reimbursement issues. For example, a conflicting definition could implicate issues with stop loss notice requirements; if the Plan is confused about when the clock starts for timely notice of a claim, the Plan may inadvertently fail to provide notice of an otherwise reimbursable claim. Further, confusion on the date with which a claim was incurred could cause a claim to fall completely outside of the policy period unbeknownst to the Plan Administrator.
Another common issue arises when the definition fails to describe how the Plan will treat ongoing courses of treatment. Will the claim be considered incurred on the date when the participant initially sought treatment? Or will each individual treatment or service be considered separately? The Plan should clearly outline these issues to avoid confusion when administering claims. Even if a Plan does describe the impact of ongoing treatment, it must also consult with the carrier to determine if their application is consistent with the carrier’s and make the necessary modifications to ensure there are no gaps between the two documents.
While it may seem very simple, failing to recognize this language gap could ultimately be the difference between reimbursement and denial on an otherwise reimbursable claim.
Plan Administrators should review the definitions in both the Plan and their policy to ensure that a gap such as this one does not preclude the Plan from reimbursement. Even better, send your Plan Document and stop-loss policy to PgcReferral@phiagroup.com and we will perform a detailed analysis of the gaps between the Plan and the Policy.
In this special edition of Empowering Plans, Brady Bizarro and Jennifer McCormick discuss the recent outbreak of COVID-19 (coronavirus). Join them for their insight into how you should be preparing, what concerns you should have about your benefits documents, and how to navigate applicable law.
Self-funding can be great if you know how to use it – but it can also be disastrous if done wrong. Health plans trust their TPAs and brokers to make the right decisions for them, and cost-containment is always the right decision. From choosing a stop-loss carrier all the way to handling appeals, the self-funding market is full of options and customizations, and some are (much) better than others.
Join The Phia Group’s legal team as they discuss the cost-containment measures they encounter most frequently, and tell some success stories, some horror stories, and how you can make the best decisions for your clients’ bank accounts.
By: Andrew Silverio, Esq.
Anyone who works in health benefits is familiar with surprise billing – the specific kind of balance billing which occurs when a patient visits an in-network physician or hospital, and receives an unexpected balance bill from an out-of-network provider that they didn’t have an opportunity to select, and in many cases, didn’t even know they had utilized. Common culprits are anesthesiologists, assistant surgeons, and outside lab work.
We often think of this as primarily a problem for emergency claims. This makes a great deal of sense, since when someone presents at an ER or is brought there via ambulance, they likely won’t have an opportunity to ask questions about network participation or request specific providers. However, according to surprising data released in the Journal of the American Medical Association on February 11, 2020 entitled “Out-of-Network Bills for Privately Insured Patients Undergoing Elective Surgery With In-Network Primary Surgeons and Facilities (available at jamanetwork.com/journals/jama/fullarticle/2760735?guestAccessKey=9774a0bf-c1e7-45a4-b2a0-32f41c6fde66&utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_content=tfl&utm_term=021120), these bills don’t actually seem to be more likely to arise from emergencies or other hospital stays where patients have less of an opportunity to “shop around.”
The study looked at 347,356 patients undergoing elective surgeries, at in-network facilities with in-network surgeons. These are patients who had ample opportunity to select their providers, and indeed did select in-network providers for both the surgeon performing their procedure and the facility in which it would occur. Shockingly, over 20% of these encounters resulted in a surprise out of network bill (“Among 347 356 patients who had undergone elective surgery with in-network primary surgeons at in-network facilities . . . an out-of-network bill was present in 20.5% of episodes...”) The instances that involved surprise bills also corresponded to higher total charges - $48,383.00 in surprise billing situations versus $34,300.00 in non-surprise billing situations.
The most common culprits were surgical assistants, with an average surprise bill of $3,633.00, and anesthesiologists, with an average bill of $1,219.00. In the context of previous research indicating that “20 percent of hospital admissions that originated in the emergency department . . . likely led to a surprise medical bill,” it seems that even when patients are able to do their homework and select in-network facilities and surgeons, they are just as susceptible to surprise billing. (See Garmon C, Chartock B., One In Five Inpatient Emergency Department Cases May Lead To Surprise Bills. Health Affairs, available at healthaffairs.org/doi/10.1377/hlthaff.2016.0970.)
Many states have enacted protections against balance billing and surprise billing, with Washington and Texas both recently enacting comprehensive legislation. However, these state-based laws have limited applicability, and there are to date no meaningful federal protections for patients in these situations. Until such protections are enacted, patients are left vulnerable to sometimes predatory billing practices, and plans are left to choose between absorbing that financial blow or leaving patients out in the cold.