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.
By: Philip Qualo, J.D.
Just when the United States was starting to adjust to a new COVID-19 reality, where bejeweled face masks, social distancing and hand sanitizer have become as fundamental to our existence as water, current events have yet again set us down a new trajectory in these unprecedented times. The May 25th murder of George Floyd, a Black man who was unarmed and handcuffed at the time of his death at the hands of law enforcement sparked a series of national protests that has called on the world to reexamine policies and practices that disproportionately impact people of color. The protests have spawned into a national movement in the U.S. that has aimed at reforms in law enforcement practices and legislative accountability. There is a very important arena, however, where racial disparities are not being discussed at this time, and that is in healthcare. Disparate access to affordable, yet effective, healthcare has and continues to have disproportionately negative impact on people of color. In most cases, access to healthcare can be the difference between life and death.
Despite the passage of the Affordable Care Act in 2010, racial disparities in healthcare continue to be a troubling phenomenon in the U.S. Black men and women face 40 percent and 57 percent higher hypertension rates than White men and women, respectively. The death rate from breast cancer for Black women is 50 percent higher than for White women. On average, 25 percent of Latinx children aged 6–11 years are considered obese, compared to 11 percent of White children. Asthma prevalence is also highest among Black and Native American communities, and Black children have a 260 percent higher emergency department visit rate and a 500 percent higher death rate from asthma compared to White children. Native American, Latinx, and Black communities have the highest percentages of adults with diabetes.
Even more troubling, the infant and maternal mortality rates for Black babies and mothers are far higher than those of White babies and mothers. In the U.S., based on 2016 data, White babies die before their first birthday at a rate of 4.9 per 1,000, and White women die from pregnancy and childbirth-related causes at a rate of 13 per 100,000. While those numbers are far higher than other wealthy countries, the picture is far worse for Black babies and mothers. Black babies die before their first birthday at a rate of 11.4 per 1,000, and Black moms die from childbirth-related causes at a rate at a rate of 42.8 per 100,000 – more than double and triple the rates of White babies and moms, respectively.
There is no one solution that can fix this problem. Recognizing that these disparities exist, is something we all must do before we can contemplate how to remedy this systemic issue. In reviewing these troubling statistics, the only solace I find is an overwhelming feeling of being blessed to work for The Phia Group. At Phia, ensuring every American is insured is not enough; we are firm in our belief that we need to reduce the cost of care at a national level. Racial disparities in healthcare will continue to grow with escalating costs, as low income minorities struggle to maintain equal access to affordable coverage and basic healthcare that would likely identify many of the above listed health issues before they grow into lifelong, chronic, and costly conditions. As workforces are growing more and more diverse by the day, this is certain to be a reality to many employers that offer health coverage to their employees. Therefore, improving racial inequality is not only a matter of civil rights, but a matter that must be taken seriously by the healthcare industry in our collective efforts to keep costs low, and access to coverage affordable for all.
By: Philip Qualo, J.D.
The Nation’s response to the COVID-19 pandemic called on employers to exercise greater flexibility and understanding for employees impacted by COVID-19. For the most part, the series of legislations enacted since the pandemic hit the U.S. have been aimed at expanding unemployment, group health plan coverage, leaves of absence, and providing financial support to struggling employers and Americans faced with an economy that evaporated overnight. However, plan sponsors offering benefits on a pre-tax basis through Internal Revenue Services (IRS) Section 125 cafeteria plans struggled to correlate the nationwide call to provide flexible options employees with the strict terms of their cafeteria plans.
Section 125 cafeteria plans are required to maintain employee pre-tax elections for benefits offered through the plan for the full plan year, with very few exceptions. The type of benefits offered through a cafeteria plan generally include employer-sponsored health coverage, Health Flexible Spending Arrangements (Health FSAs) and Dependent Care Assistance Programs (DCAPs). The IRS also imposes strict limitations on when midyear changes to those elections may be made. As employers have been forced to deal with mandatory shutdowns, furloughs, and newly enacted leave requirements, most plan sponsors found themselves with little guidance on how to handle requested changes to elections made before COVID-19 became a household name.
After much anticipation, the IRS finally released much needed guidance on May 12, 2020. In IRS Notice 2020-29, the IRS provides for increased flexibility with respect to midyear elections under a Section 125 cafeteria plan during calendar year 2020 due to COVID-19. The Notice applies to cafeteria plans that offer employer-sponsored health coverage, FSAs and DCAPs. The Notice permits an employer to amend its cafeteria plans to allow employees to:
Notice 2020-29 does not require cafeteria plans adopt these midyear elections. An employer that decides to amend their cafeteria plan to allow for any of the above midyear election changes must adopt a plan amendment. It should be noted that any amendment to a cafeteria plan made under pursuant to the Notice is only valid through December 31, 2020.
It is important to note that an employer is not required to provide unlimited election changes but may, in its discretion, determine the extent to which such election changes are permitted and applied, provided that any permitted election changes are applied on a prospective basis only, and the changes to the plan's election requirements do not result in failure to comply with the nondiscrimination rules applicable to Section 125 cafeteria plans.
In determining the extent to which midyear election changes are permitted and applied, an employer may wish to consider the potential for adverse selection of health coverage by employees. To prevent adverse selection of health coverage, an employer may wish to limit elections to circumstances in which an employee's coverage will be increased or improved as a result of the election.
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 firstname.lastname@example.org.
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.
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: 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: 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.
By: Kelly Dempsey, Esq.
Many federal regulations are set up to be a floor and not a ceiling – meaning employers and plans are permitted to be more generous than the federal regulation requires. This concept is important as we wade into unknown territories with the constant changes associated with coronavirus and the relevant employer and plan considerations. Two of the more common exceptions here are (1) permitted election changes for cafeteria plans under Code Section 125 and (2) requirements under HSA-qualified high deductible health plans (HDHPs), so we’ll review those quickly.
Section 125 contains specific events that qualify as permitted election changes – meaning if a specific event occurs, a participant may opt to modify their elections in the cafeteria plan (for example, stop paying premiums for medical coverage on a pre-tax basis or change how much is being contributed to an FSA or DCAP during the plan year). The rules indicate that an employer may include any of the permitted election changes in the cafeteria plan, but the employer is not permitted to provide options in addition to what the rules provide. Employers also do not have to include every permitted election change in their cafeteria plan, although most do choose to do so.
Our other example, IRS rules for HSA-qualified HDHPs, also have certain parameters for HDHPs where employers and plans are not allowed to be more generous (specifically, the minimum HDHP deductible and the maximum contribution to HSAs). Each year the IRS reviews these figures to determine if they should be modified based on cost of living changes.
In the absence of any federal or state law, employers with self-funded ERISA plans are generally permitted to expand continuations of coverage associated with leaves of absence or layoffs/furloughs (i.e., leaves and continuations not associated with FMLA or COBRA) for a timeframe that aligns with the employer’s business practices. In this time of great uncertainty with the spread of COVID-19, we understand many employers are in the process of laying off or furloughing employees due to financial strain or simply a stoppage or suspension of business operations. It’s highly likely that the federal government will issue additional guidelines related to leaves of absences and continuations of coverage in the near future, but until then, employers have broad discretion to amend their plans as they see fit. The key word here is “amend” – employers must go through the formal process of amending their SPD/PD if it does not align with the policy the employer is creating. Updating the SPD/PD to addressed modified continuations of coverage is crucial to ensure compliance with ERISA requirements and minimize the potential for creating a coverage gap with stop-loss. It’s still a bit unclear how stop-loss carriers will modify their processes (if at all) to accept changes to SPD/PDs in light of COVID-19 (i.e., if they will accept changes with less notice or if they’ll waive their right to modify premiums). The answers will likely reveal themselves soon.
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.