By: Kevin Brady, Esq.
Earlier this month, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) jointly issued a Final Rule extending a number of deadlines and timeframes relevant to group health plans. The Final Rule recognizes that as a result of the National Emergency, plan participants “may encounter problems in exercising their health coverage portability and continuation coverage rights, or in filing or perfecting their benefit claims. As such, the stated purpose of the Final Rule is “to minimize the possibility of individuals losing benefits because of a failure to comply with certain pre-established timeframes.”
The Final Rule essentially requires plans to disregard a designated period of time when determining whether certain deadlines or timeframes are satisfied. Consistent with the Final Rule’s stated purpose, the extension of these timeframes will provide additional opportunities for employees and their dependents to maintain existing, or enroll in, coverage as well as provide additional opportunities for participant’s to submit and appeal claims. This designated period of time is succinctly described as the “Outbreak Period” which entails “the period from March 1, 2020 until sixty (60) days after the announced end of the national emergency period or such other date announced by the Agencies in a future notification.”
Under HIPAA, employees who experience certain special enrollment events generally have a limited period of time (following the event) to request coverage under their employer’s plan. Under the Final Rule, the Outbreak Period must be disregarded when considering whether a HIPAA special enrollment request is timely.
Electing Continuation Coverage
Plan participants who experience “qualifying events” are generally eligible for continued coverage under COBRA subject to certain conditions. After receipt of the COBRA election notice, “qualified beneficiaries” have 60 days to elect continuation coverage. Under the Final Rule, plans must disregard the Outbreak Period when determining whether a qualified beneficiary’s election is timely.
Timely Payment of Premiums
After electing COBRA continuation coverage, qualified beneficiaries must pay their first premium payment with 45 days of their election. Furthermore, qualified beneficiaries must pay premiums in a timely fashion (a premium is considered paid timely “if it is made not later than 30 days after the first day of the period for which payment is being made.” Under the Final Rule, the Outbreak Period cannot be considered when determining whether payment of the premium is timely.
Notice of Qualifying Event
Under certain circumstances (generally divorce or a child losing dependent status), plan participants will bear the responsibility for notifying the group health plan of the qualifying event under COBRA. While COBRA typically requires this notice to be provided within 60 days, the Final Rule requires plans to disregard the Outbreak Period when determining whether notice is timely.
Claims and Appeals
Filing of Claims
Group health plans will generally limit the period of time in which a claim may submitted and considered eligible for coverage. Under the Final Rule, plans must disregard the Outbreak Period when considering whether a claim has been timely filed. This will undoubtedly lead to additional, and potentially significant exposure, for plans as claims that could have been properly denied previously, may now be payable under the plan.
Appealing an Adverse Benefit Decision
Group health plans must provide participants at least 180 days to appeal an adverse benefit decision. Whether a plan provides the required 180 days, or more, plans must disregard the Outbreak Period when determining this deadline. Similar to the extension of the deadline for filing claims, this extension may also lead to additional, and potentially significant, exposure for plans.
For claimants enrolled in non-grandfathered group health plans, those claims which are otherwise eligible for external review (only certain types of appeals are eligible), are entitled to additional time to request an external review under ERISA’s appeals procedure rules. Under the Final Rule, the Outbreak Period is disregarded when considering the deadline to file an external review.
Further, if a claimant’s external review request is not “complete” (meaning that the request for review is not sufficient to be considered by the Independent Review Organization) the claimant is typically limited to the duration of the filing period to perfect the request. However, the Final Rule also requires the plan to disregard the Outbreak Period when determining whether additional information, provided to perfect a request for external review, is timely.
By: Jon Jablon, Esq.
In case you haven’t heard, COVID-19 is kind of a bummer. We’re all at home, and like my colleague Jen McCormick, I’ve got a toddler who wants nothing more at any given time than to go to a playground. Even after so many weeks of this, it still seems surreal to be able to say “sorry, buddy, but if we go to a playground, dad might go to jail!”
Anyway. This blog post is about direct primary care!
Some have expressed the view that the best feature of DPC is the personalization of care; others say the best thing about it is the flat fee. In my view, though – through COVID-19-colored lenses – the best thing about DPC is that direct primary care providers are already prepared to work from home.
When I text Dr. Tremblay, it doesn’t matter that his office is closed. It doesn’t matter that I could go to jail if I bring my son to a playground. No – all that matters is that during this crisis, my DPC provider is available to help me. Ironically, he may even be more available than usual, since he’s not burdened with that pesky office time.
I can’t speak to the ability to retain DPC care in the midst of this crisis, but if the benefits of DPC in normal times weren’t attractive enough, it’s definitely worth looking into now! In this time of need, individuals or even entire employer groups would do well to explore this option, and provide some much-needed additional security to their families.
This may sound like a sales pitch, but really it’s just my personal anecdote about how much more secure my wife and I are knowing that we can speak to a doctor at any time, and have prescriptions written for us, from the comfort of a playground. Or, uh, without ever having to leave the house, I mean.
Please continue to stay safe, everyone – including social distancing and access to care!
By: Chris Aguiar, Esq.
There are so many fascinating things to debate in what can only be described as perhaps the strangest times we as a society have collectively endured. Should we open the economy at the expense of American lives? Does the data even support this notion that social distancing makes a difference? How could the models have been so far off their original projections? How did the current administration do with respect to its response? It would be disingenuous to say that these are not topics in which I am interested, but in terms of the day to day business of a subrogation professional (and in the context of this blog), I’m thinking much more in the weeds.
The immediate question a lot of our subrogation clients are asking is quite simply, what is the rule regarding workers' compensation claims with respect to this pandemic? Will medical professionals, first responders, and even essential employees be able to make claims for workers' comp? One’s gut reaction might be to say, “of course they can!” – But deeper analysis requires a bit more nuanced thinking.
The success of every injury claim, be it an auto accident, a work injury, or medical malpractice, rests on a critical element of proving negligence – causation! How does one prove that they contracted the virus as a result of working with a person infected with COVID-19, rather than when they stopped at the grocery store on the way home from their shift? With a virus that the media would lead you to believe is so potent that the mere act of stepping outside your door will leave you at significant risk, how are we to know what actually “caused” that person to contract the virus? It would be virtually impossible to tie the contracting of the virus to one single event – accordingly, the theoretical answer lies in the concept of “presumptive illness”. The practical answer, as is so often the case with legal discussion, is, well, “it depends.”
Every state has different definitions of “presumptive illness” - a presumption that one who works closely with those who are ill, such as medical personnel and first responders, contracted the illness within the scope of their employment. Furthermore, every state defines the class of employees who are eligible for the presumption differently (e.g. which “essential employees” are eligible for the presumption?). Additionally, many states are currently reviewing their laws and determining whether to make a change to specifically address the current pandemic and what employees on the front lines are able to claim. Needless to say, as with everything related to COVID-19, it is a quickly developing situation. At this time, whether a plan participant is eligible for worker’s compensation benefits depends on the type of work they do, and whether that state already provides for this presumption. If it doesn’t, states will need to add this presumption in order to allow workers to access these benefits.
Anyone who has questions can feel free to reach out to our team for more information at email@example.com.
By: Nick Bonds, Esq.
While some of the United States is tentatively beginning to reopen, much of the country remains firmly under social distancing orders. The ripple effects of keeping people cooped up with their families vary wildly, but many are reveling in the extra time spent together, and are finding numerous ways to stay sane and entertained in the face of the Covid-19 pandemic.
Some of this has led to fairly predictable shortages, but there are reasons for hope. Aside from the struggle of grocery stores (and even a few global online retail-giants-who-shall-not-be-named) to keep toilet paper, disinfectant wipes, and hand sanitizer in stock, the fact that our stores’ shelves have been rendered entirely barren should be seen as a testament to the resilience of our modern supply chain.
Nonetheless, there are a number of things you just can’t find right now. Toilet paper remains scarcer than I’d like it to. The meat case at my local store has been pretty sparse of late. You probably can’t buy a Nintendo Switch from a traditional retail outlet at MSRP to save your life right now. And, spurred by the hordes of energetic youths with no safe outlet for their boundless energy, trampolines are flying off of shelves.
This got me thinking… plenty of people find perfectly mundane ways of injuring themselves in the home. Sure, social distancing keeps us safe from the coronavirus, and protects us in plenty of other ways. Fewer drivers on the roads means fewer car accidents. Fewer kids playing peewee football means fewer broken collarbones. But as a former kid myself, I can tell you: we will find a way to injure ourselves, trampoline or no. And fear of the coronavirus may well make people wary of visiting an emergency room (preferably an urgent care clinic), even when truly necessary, exacerbating injuries and prolonging the healing process. This will almost certainly lead to higher claims costs for plans down the line.
All this to say, it is imperative that we all keep up with our personal well-being in this time of social distancing. If anything, this pandemic may help all of us maintain a greater awareness of our personal health. Companies that encourage telemedicine can help their employees build a rapport with their healthcare providers, leading to better health outcomes and ultimately saving plans money. Keeping ourselves and our families mentally and physically engaged throughout this time will keep us all healthier and saner until we can finally go to our offices again. If it takes a videoconference with your doctor (or a trampoline/black-market videogame console) to make that happen, maybe it’s worth it.
Andrew Silverio, Esq.
Apologies for the attention-grabbing headline, but no, as good as that would be for payers, it didn’t. However, Kaiser Health News recently ran a story, which was also picked up by NPR, speculating that this is precisely what had occurred. The article, which ran on April 17, 2020, discussed the terms and conditions placed on providers who receive funds from the Public Health and Social Services Emergency Relief Fund under Public Law 116-136, one of which states that “… for all care for a presumptive or actual case of COVID-19, Recipient certifies that it will not seek to collect from the patient out-of-pocket expenses in an amount greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network Recipient.”
For its expansive reading of this seemingly limited prohibition on balance-billing, KHN points to a statement on an explanatory HHS website (the article links to https://www.hhs.gov/provider-relief/index.html) stating that “HHS broadly views every patient as a possible case of COVID-19.” The rationale then, is that if providers can’t balance bill COVID-19 patients, and every patient is a COVID-19 patient, then providers can’t balance bill anyone. However, as noted above, the actual requirement in the provider “Acceptance of Terms and Conditions” (available at https://www.hhs.gov/sites/default/files/relief-fund-payment-terms-and-conditions.pdf) applies to “…all care for a presumptive or actual case of COVID-19.” Even if every patient is a “presumptive” COVID-19 patient, it is simply not the case that all treatment is treatment for a COVID-19 case.
As beneficial as a broader interpretation of this guidance could be for payers, we would not advise payers to rely on it as it is simply not supported by the terms of the provider Terms and Conditions or consistent with the past positions of HHS. First, note that the “every patient” language was found in explanatory public HHS guidance online, not the actual Terms and Conditions. Additionally, as of April 24, 2020, that language appears to have been removed (perhaps due to the potential for misinterpretation, but that is of course speculation). The link cited by the KHN article now redirects to https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/index.html, which as of April 24, 2020 does not contain the “every patient” language and states that its content was last reviewed on April 24, 2020.
As the legal landscape around COVID-19 continues to rapidly develop, as always, don’t hesitate to contact us with any questions.
By: Philip Qualo, J.D.
Before COVID-19 became a common household name, the United States was already in the midst of a mental health crisis. Rates of suicides and drug overdoses have been climbing in recent years; for example, in 2017, 17.3 million adults in the U.S. had at least one major depressive episode. This staggering figure is likely not even a true reflection, as studies show many people don’t seek treatment at all finding that stigma and shame keep 80% of people out of treatment. As the COVID-19 pandemic has consumed the nation, and the world, many of us are learning the hard way that life during a pandemic has even the most resilient of us drowning in unprecedented levels of stress. School and work closures, as well as stay-at-home orders, feel like they might stretch on for months. The volatile economy and sudden job losses have added a layer of financial insecurity that wasn’t a factor in people’s lives just a few weeks ago. Meanwhile, the rates of COVID-19 infections are rising exponentially, creating intense anxiety about what day-to-day activities are even safe. For those at highest risk of developing complications or already ill, there’s the fear of getting sick, or sicker. In the worst cases, there’s the grief of losing loved ones. The combination of these stressors are common triggers for mental health disturbances and substance abuse disorders.
COVID-19 hasn’t just disrupted our daily lives; it has also disrupted how our minds work. As stay-at-home orders remain in effect, people aren’t only isolated from care, but from each other. In the U.S., more than 25% of people live alone, and studies have linked loneliness to substance abuse and mood disorders. Others are stuck inside with abusive partners or are living in already strained relationships. Those managing addiction risk a potential relapse without access to in-person meetings or substance abuse rehabilitation services. Some will likely bounce back when life returns to normal, but for others, unmanaged stresses could lead to bigger problems down the line.
On the brighter side, the American Psychiatric Association finds video-based sessions “equivalent” to in-person care for diagnosis, treatment, quality, and patient satisfaction. Demand for telehealth mental services has already spiked. Talkspace, a text and video chat therapy service, has seen a 65% increase in customers since mid-February. Winsberg’s Brightside, an app that offers treatment and medication for anxiety and depression, has seen a 50% bump in new users since the start of the quarter. More than 50 companies have signed up or expanded their use of telehealth mental services, including big employers such as Nike and Target.
The federal government has also relaxed some of its previously restrictive privacy standards. In March, the Department of Health and Human Services issued guidance that it would not impose penalties for providers unable to comply with HIPAA privacy rules during the COVID-19 nationwide public-health emergency. That means, for the time being, therapists can conduct sessions using free and widely available services including FaceTime, Google Hangouts, or Skype, making those services much easier to access for those with the greatest need for it.
Much like we’ve seen elsewhere in the U.S. health-care system, the sudden and growing need for care has left mental health providers overwhelmed. The root of this problem is that there aren’t enough therapists to go around. Historically, practitioners could only serve patients in states where they were licensed, but states are rapidly working to relax those requirements to accommodate the influx of need. Each locality has its own licensing permissions, though, leaving telehealth mental service providers having to wade through a patchwork of regulations.
Even with the recent expansion of coverage for telehealth services, it is important to keep in mind that not all behavioral health issues can be addressed from afar, and people who need more hands-on treatment could fall through the cracks. Employers, however, can help to bridge this gap. One of the most important things employers can do is provide an employee assistance program (EAP) or ensure their employer-sponsored health plans offer mental health coverage. If an EAP is part of the benefits package, now is a good time to remind employees of the availability of such services. Companies should also consider compiling and distributing lists of available local mental health resources like therapists, psychiatrists, suicide hotlines, and even online meditation and yoga classes.
For businesses that are operating completely remote, regularly scheduled video meetings and virtual social events can also help to defray the mental challenges that accompany long periods of isolation. Even simply allowing employees the opportunity to talk about their concerns and emotions can help. As the nation comes together to contain the spread of COVID-19 and protect our physical health, it is equally as important we be cognizant of our mental health as well as support our peers who may be experiencing emotional and challenges with substance abuse in these challenging times.
If you or someone you know is struggling, contact the National Suicide Prevention Lifeline at 800 273-8255.
By: Kevin Brady, Esq.
The national shift to social distancing has effectively changed the way almost all of us go to work. For some, rather than physically report to an office, we simply wake up (hopefully followed by some coffee), and get the day going. The daily “Good Morning” from a coworker is sent over skype, the “Boomers” are now masterful “Zoomers”, and many talented folks juggle the full-time job of parenting while somehow managing their full-time work responsibilities each day. For some (very brave) others, such as nurses and grocery store employees, the way they report to work may not have necessarily changed, but the workplace they go to has taken on an entirely new light.
While it has been a significant shift, those who are able to work remotely are certainly lucky to have the opportunity to do so. Shelter-in-place orders, albeit an absolutely necessary measure to flatten the curve of COVID-19, have had a significant impact on how people work and has unfortunately resulted in a lack of “work” for many.
In an effort to protect employees during these difficult economic times, The Families First Coronavirus Response Act (FFCRA) was signed into law. The new law provides new paid leave entitlements intended to protect employees who are directly impacted by COVID-19. The Emergency Paid Sick Leave Act for example, requires employers to provide up to 80 hours of paid leave when employees go on leave due to certain qualifying circumstances, such as experiencing symptoms of COVID-19 or being advised by a healthcare provider to self-quarantine, among others. One particular circumstance, which has caused a rash of confusion between employers and employees alike, relates to shelter-in-place orders. Under the EPSLA, employees who are unable to work as a result of a federal, state, or local quarantine order are entitled to emergency paid sick leave.
As Congress expedited the drafting, and passing, of the FFCRA, some of its provisions were quite confusing and required further clarification to comprehend the intent behind the language. Luckily, the U.S. Department of Labor (DOL) has issued guidance to help clarify some of the confusion surrounding the EPSLA in particular. The guidance provides that individuals unable to work as a result of a shelter-in-place order are only entitled to leave if they are 1) actually unable to work or telework (meaning they cannot leave their homes to travel to the workplace and cannot telework because of the nature of the position or the required access to technology) and 2) that the employer actually has work for that individual to do (the business operations have continued and the employer has work to be done by the employee). While this application of the law may seem obvious, it is actually quite nuanced and difficult to determine whether an employee is actually eligible for paid leave, and possible even more difficult to determine what their rate of pay should be during said leave. For more information on these nuanced questions, see the DOL’s FAQ page.
As the COVID-19 situation continues to develop, we anticipate that further guidance on how these entitlements are meant to apply will be issued; the DOL has already updated the FAQ portion of their website several times since the FFCRA’s enactment. Given that the situation is fluid and that it is unclear what, if any, steps will be taken next to protect the economy and the workforce, we are interested to see how leave entitlements under the FFCRA will be applied in practice.
By: Jen McCormick, Esq.
COVID-19 has impacted most aspects of our lives, and the lives of our families. From a healthcare perspective, we want to do all we can to protect our families from the virus. In most cases this means that households where both parents work outside the home and children attend school or daycare are now all confined to their homes… every day. We do this in hopes of keeping the children and ourselves safe. Being confined to our homes, however, can be challenging in many ways.
For families where being home is the exception over the rule this has been an adjustment. We are forced to redefine our roles as co-workers, parents, and spouses to find the perfect work-home balance, all while at home. Dealing with this new normal is hard, and certainly pays a toll on our mental health. Mindful of this extra stress for many, plans and employers should consider additional ways to help.
Consider ways the parent can use their health plan, for example, does the employer health plan cover telehealth? Is this available for mental health as well? The option to contact a doctor over the phone would make receiving care easier for many. A waiver of the copay or deductible would make this even more attractive, and likely provide many benefits for the individual, their family, and work productivity.
Another consideration would be how employers are actively trying to stay engaged by using video chat features, hosting virtual happy hours, or playing virtual games. By setting up meetups it’s a way to remain connected while still maintaining distance. No effort is unnoticed in this particularly challenging time and even a ‘how are you doing’ could make a big difference for a struggling parent.
By: Jon Jablon, Esq.
The CARES Act is brand new, obviously, but its treatment of the relationship between medical providers and health plans is anything but. As with just about all legislation to date on the topic of payor-provider relations, the legislature has not hesitated to essentially give all the power to the providers. The bill includes the following provisions:
SEC. 3202. PRICING OF DIAGNOSTIC TESTING.
(a) Reimbursement Rates.—A group health plan or a health insurance issuer providing coverage of items and services described in section 6001(a) of division F of the Families First Coronavirus Response Act (Public Law 116–127) with respect to an enrollee shall reimburse the provider of the diagnostic testing as follows:
(1) If the health plan or issuer has a negotiated rate with such provider in effect before the public health emergency declared under section 319 of the Public Health Service Act (42 U.S.C. 247d), such negotiated rate shall apply throughout the period of such declaration.
(2) If the health plan or issuer does not have a negotiated rate with such provider, such plan or issuer shall reimburse the provider in an amount that equals the cash price for such service as listed by the provider on a public internet website, or such plan or issuer may negotiate a rate with such provider for less than such cash price.
If there is a negotiated rate between the payor and provider, then the payor must pay that rate. If, however, there is no previously-negotiated rate, then the payor and provider can either elect to negotiate a rate (on a case-by-case basis, or globally – same as any other payment contract), or, if negotiation is not possible or not successful, the plan is required to simply pay the provider whatever price the provider has identified on its website. In other words, the plan must pay a negotiated rate, if there is one, but if not, the plan must pay whatever the provider demands.
Even in this time of near-universal employer financial hardship, the legislature has been very careful to not give a damn about the costs incurred by health plans – including self-funded employer-sponsored plans, many of which are struggling small businesses. It will never cease to amaze me.
Interestingly, the section of the bill immediately following the one quoted above reads:
(b) Requirement To Publicize Cash Price For Diagnostic Testing For COVID–19.—
(1) IN GENERAL.—During the emergency period declared under section 319 of the Public Health Service Act (42 U.S.C. 247d), each provider of a diagnostic test for COVID–19 shall make public the cash price for such test on a public internet website of such provider.
(2) CIVIL MONETARY PENALTIES.—The Secretary of Health and Human Services may impose a civil monetary penalty on any provider of a diagnostic test for COVID–19 that is not in compliance with paragraph (1) and has not completed a corrective action plan to comply with the requirements of such paragraph, in an amount not to exceed $300 per day that the violation is ongoing.
So, the law requires payment of either a negotiated rate or the provider’s published rate – and the same law requires the provider to publish its rate. But what if it doesn’t, or what if the particular provider doesn’t maintain a website at all, as many smaller offices don’t? Health plans should be wary about what happens in the event the provider fails to “make public the cash price for such test on a public internet website.” It’s tempting to take the “you didn’t comply, so if you don’t negotiate a reasonable rate, we’ll report you” approach – but some consider that at least extortion-adjacent. Instead, a good practice may be to simply inform the provider – if it hasn’t posted a price – that there is no option but to negotiate, and make sure you’re armed with reasoning for what you should reasonably be paying.
One thing is clear, though: RBP plans will need to be careful here, since the legislature’s primary aim seems to be that patients do not get balance-billed for COVID-19 testing. The traditional RBP approach, then – where the Plan determines its pricing and then pays its minimum to the provider – is not going to be a viable option under the current state of the CARES Act. If there’s no pre-negotiated rate with the provider, the Plan must pay the provider’s published rate, or negotiate on the spot – but we strongly caution all health plans against creating a situation in which balance-billing is even a possibility.
By: Kevin Brady, Esq.
In response to the mounting need to flatten the curve and slow the spread of COVID-19, the federal government has taken overt action in the passing of the Families First Coronavirus Response Act. The act effectively removes the financial barriers and facilitates access to testing, by requiring group health plans of all shapes and sizes to waive cost-sharing for expenses related to COVID-19 testing.
The federal mandate to waive all cost-sharing on testing is significant, but may not be enough to address the potential costs that patients may ultimately bear. The testing was free, but those who test positive now need care; and that care may be significantly costlier than one may think.
According to a brief prepared by the Kaiser Family Foundation (KFF), even those patients with health insurance could face significant financial pressure following the treatment of COVID-19. For purposes of the study, KFF did a deep dive on the potential costs of treatment for COVID-19 by researching data on the treatment of pneumonia, and the out-of-pocket costs that individuals with health coverage may expect.
For those patients with serious cases, extended inpatient hospitalization will likely be necessary. According to KFF’s analysis, the average cost of care (split between the health plan and the patient) for cases with major complications or comorbidities was $20,292. A patient with no complications can expect to pay around $1,300 (in cost-sharing alone) for treatment.
Another concern for patients is that we are still early in the year and most plan participants have not even come close to reaching their deductibles or out-of-pocket maximums. This fact alone may drive the average cost to patients even higher. Even those who may not owe a significant amount in cost-sharing may still be burdened by balance bills on out-of-network claims or even surprise bills on in-network claims. Needless to say, the potential cost of care for the treatment will likely be significant on health plans and patients alike. It will be interesting to see if further guidance from the federal government or major carrier will address this issue.
While most of us are impacted in some way- social distancing, work from home, restrictions on travel- it is important that we do not lose sight of those individuals who will require significant care as a result of COVID-19 and ensure that the potential costs associated with that care are addressed in kind.