While former President Donald Trump has threatened to repeal the Affordable Care Act (ACA) if he wins reelection, the landmark healthcare law would be increasingly difficult to dismantle. In this CNN article, McDermott+Consulting’s Rodney Whitlock says the country is “as close as we’ve been to meeting the aspirational goals of 2010 for the ACA.”
A recent article by the Kaiser Family Foundation (KFF) and National Public Radio (NPR) raised the prospect that patients may still see surprise medical bills despite the enactment of the No Surprises Act (NSA).
The article, entitled A Surprise-Billing Law Loophole? Her Pregnancy Led to a Six-Figure Hospital Bill, reports the story of a woman who was admitted for an extended inpatient hospital stay and follow-up postpartum procedure after experiencing a serious pregnancy complication. According to the article, the plan initially determined that the hospital was a nonparticipating provider, but the specialty clinic at which she was treated was in the carrier’s network. (The clinic’s doctors admitted patients only to the nonparticipating provider hospital.) The result was some $135,000 in uncovered expenses.
There are two relevant statutory provisions at play here:
A great deal is riding on whether facilities and providers are participating or nonparticipating for NSA purposes, and whether providers are in or out of network for ACA purposes. If it is possible for a nonparticipating facility to have a participating provider, then there would seem to be a gap in the NSA’s protections. In the government’s view, this is not possible, so there is no gap.
The US Departments of Labor, Health and Human Services, and the Treasury (the Departments) weighed in on the issue in Q&As 1 and 2 of recently issued FAQs Part 60. According to the Departments, either:
Under no circumstance, however, can a facility be a “participating” provider for NSA purposes and at the same time claim that they are not subject to the ACA out-or-pocket limits on in-network cost sharing.
The KFF/NPR article does not report the details about the underlying contractual arrangements. This might have been a health maintenance organization or other network-related plan, for example. The article does report that the balance bill was reversed, although no rationale is provided. The lesson here, according to the Departments, is that a plan or carrier cannot be in network for one purpose and out of network for other purposes to evade the surprise billing rules.
The “family glitch” was a regulatory oddity of the Affordable Care Act (ACA). It required the affordability of an employer-sponsored health plan to be determined based solely on the cost of the plan to an individual employee, disregarding the costs to add family members to a plan. This resulted in many families being ineligible for marketplace premium subsidies when purchasing their own health insurance on exchanges. In October 2022, the US Department of the Treasury and Internal Revenue Service (IRS) issued a final rule designed to fix the “family glitch.”
In this Bloomberg Law article, Alden Bianchi and Teal Trujillo examine the rationale advanced by the IRS in support of its changed position in the matter of the “family glitch” and consider how the new position of the IRS might fare if challenged in the wake of West Virginia v. EPA.
Copyright 2023 Bloomberg Industry Group, Inc. (800-372-1033) Reproduced with permission.
The US Departments of Labor, Health and Human Services, and the Treasury (the Departments) have released a series of Frequently Asked Questions (FAQs) in response to Braidwood Mgmt. Inc. v. Becerra, a recent case that invalidated a portion of the Affordable Care Act (ACA) preventive services mandate. The FAQs aim to address inquiries from stakeholders, while also emphasizing the Departments’ opposition to the Braidwood ruling. The Departments urge plans and issuers to continue providing coverage for preventive services at no additional cost to patients.
Since the Biden administration announced its intention to end the COVID-19 National Emergency (NE) and the COVID-19 Public Health Emergency (PHE) on May 11, 2023, a topic of great debate has been the requirement and the coverage of COVID-19 vaccines.
As of March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act has required health plans and issuers to cover COVID-19 vaccines without cost sharing, even when provided by out-of-network providers, during the PHE. Health plans and issuers have been required to cover COVID-19 vaccines within 15 days after any vaccine becomes recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention or receives a rating of “A” or “B” classification recommendation from the United States Preventive Services Task Force (USPSTF). Separately, the Affordable Care Act (ACA) generally requires coverage of vaccines recommended by the ACIP and the USPSTF as preventative care without cost sharing. If a COVID-19 vaccine is provided by an out-of-network provider, however, health plans may begin to impose cost sharing and certain prior authorization and medical management requirements. As a result, after the PHE, COVID-19 vaccines will still need to be covered without cost sharing except in the case of an out-of-network provider.
Due to the ongoing requirements of the ACA, there will be minimal actions that employers need to take after the PHE ends regarding vaccine coverage. The primary changes are that ACIP-recommended COVID-19 vaccines should be covered immediately instead of after a 15-day hold period and that health plans can decide whether to apply cost sharing, prior authorization and medical management requirements to COVID-19 vaccines obtained from an out-of-network provider. A summary of material modifications and/or plan amendment may be required for any changes the health plan makes. Even for plans that are not subject to the ACA, such as grandfathered health plans, participants cannot be balance billed if a vaccine dose was purchased by the federal government. However, the federal government has not received additional funds from Congress to continue to purchase more vaccines for some time. Employers and plan sponsors should stay up to date on developments, as there may be some questions regarding which vaccines must be covered without cost sharing as more vaccines become available.
For any questions regarding the end of the PHE and/or NE, please contact your regular McDermott lawyer or one of the authors.
On January 25, 2023, the US Department of Health and Human Services (HHS) announced that more than 16.3 million people nationwide selected an ACA Marketplace health plan during the 2023 open enrollment period that ran from November 1, 2022, until January 15, 2023, for most marketplaces.
According to HHS, total plan selections include 3.6 million people who are new to the marketplaces for 2023 (22% of the total). The 3.6 million figure is a 21% increase in new-to-marketplace plan selections over last year.
The data included in HHS’s January 25 announcement represents activity through January 15 for the 33 marketplaces using HealthCare.gov, and through January 14 or 15 for the 18 state-based marketplaces in 17 states and the District of Columbia that use their own eligibility and enrollment platforms. Some state-based marketplaces are still in open enrollment and will report updated enrollment data after that period closes. A fact sheet on state-based marketplace open enrollment deadlines can be found here.
The IRS finalized regulations concerning information reporting of health insurance coverage for Code Sections 5000A, 6055 and 6056. The regulations provide an automatic deadline extension for filing ACA forms and an alternate method for providing ACA forms to certain individuals, among other changes.
On August 4, 2022, the US Department of Health and Human Services (HHS) issued a Notice of Proposed Rulemaking (NPRM or proposed rule) to reinterpret section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age or disability in a health program or activity, any part of which is receiving federal financial assistance. The proposed rule restores and strengthens certain civil rights protections under federally funded health programs and HHS programs which were limited following the 2020 Trump-era version of the rule, specifically regarding discrimination on the basis of sex, including sexual orientation and gender identity, and returns certain protections for individuals with limited English proficiency (LEP). Additionally, the proposed rule bolsters protections against discrimination in healthcare by clarifying that funds received under several federal healthcare programs, including Medicare Part B, are included in the definition of federal financial assistance under the law. As such, under the proposed rule, the list of entities expected to comply with the nondiscrimination measures outlined in Section 1557 of the ACA is significantly expanded, in many ways aligning with the 2016 Obama-era version of the rule. The NPRM also proposes to expand the applicability of the post-Bostock interpretation of “on the basis of sex” to Medicaid, Children’s Health Insurance Programs (CHIP) and Programs of All-Inclusive Care for the Elderly (PACE). For now, portions of the 2020 Final Rule not discordant with Bostock continue to apply.
If the US Supreme Court overturns Roe v. Wade (as suggested by a leaked draft on May 2), employers who want to provide abortion coverage to employees and their families could encounter serious challenges. In this Bloomberg Law article, McDermott’s Sarah G. Raaii noted that employers that provide travel expenses for abortions might encounter resistance from state laws like a Texas statue that permits citizens to sue abortion providers for abortions performed around six weeks.
“If a state wants to interpret this very broadly—and it seems that some of them have indicated that they do—to really just punish anyone involved even peripherally with providing abortion in the states, employers could potentially be at risk.” Raaii said.
On April 19, 2022, the US Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments) released Frequently Asked Questions (FAQs) regarding the implementation of certain reporting provisions of the Affordable Care Act (ACA). The FAQs were released to provide clarity on the required drug price disclosures identified in the Transparency in Coverage final rule (the Rule) issued on October 29, 2020.
The Rule requires most non-grandfathered group health plans and health insurance issuers to: (1) upon request, disclose pricing information specific to participants, beneficiaries or enrollees (or their authorized representative) (collectively referred to herein as participants); and (2) provide public disclosures in machine-readable files regarding in-network, out-of-network and prescription drug prices. The Departments reiterated that the enforcement of the requirements related to machine-readable files disclosing in-network and out-of-network data will begin July 1, 2022 (enforcement of this part of the Rule related to prescription drugs has been delayed), and clear up confusion regarding reporting for certain alternative reimbursement arrangements.
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