GPAHU Pulse – January 2022

GPAHU - Monthly State and Legislative Updates

Here’s something to talk about when discussing plan design options and employer contribution strategy with group clients in the New Year.

New federal protections that are part of the “No Surprises Act” will prevent insured patients from receiving surprise medical bills when they unexpectedly receive care from an out-of-network provider without providing consent. Surprise balance bills have been a significant concern for Americans for years. According to Kaiser Family Foundation research, approximately 1 in 5 emergency visits and about 1 in 6 inpatient admissions at in-network facilities resulted in surprise balance bills before this year. More than any other type of hospitalization, surgery admissions are more likely to result in an out-of-network charge (21%), followed by admissions for mental health or substance abuse (20%).

Milliman, Jason. Milliman, Jason. “Before New Ban, the Prevalence of Surprise Bills,” Kaiser Family Foundation, January 7, 2022.

The Big Three

Each month GPAHU identifies three top public policy or legal developments that could impact our members and clients.  Here are this month’s big three!

DOL Releases Guidance on Broker Compensation Disclosure Requirements

Federal officials have started 2022 by taking significant actions related to the COVID-19 pandemic that will affect health insurance coverage and employee benefit programs. Those actions include the Department of Labor requiring health insurance plans to pay for over the counter (OTC) COVID-19 tests as part of the federal preventive care requirements and the Biden Administration’s enforcement of the Occupational Safety and Health Administration’s (OSHA’s) COVID-19 testing or vaccination mandate for employers with 100 or more employees.

On January 13, 2022, The Supreme Court of the United States blocked OSHA’s emergency temporary standard requiring businesses with at least 100 employees to ensure that workers are vaccinated against COVID-19 or wear masks and undergo weekly testing. However, the Supreme Court did allow the federal government to require COVID-19 vaccinations for health care workers at facilities that participate in Medicare and Medicaid programs.

On January 10, 2022, the Department of Labor issued FAQs that apply to fully insured and self-funded health plans, requiring them to cover the cost of OTC Covid-19 tests purchased on or after January 15, 2022.  The FAQs specifically require that plans cover the tests without imposing any cost-sharing requirements, prior authorization, or other medical management requirements, including a prescription or individualized order by a public health provider.

The FAQs include several ways that health plans may choose to mitigate overall costs. First, while plans are strongly encouraged to create direct coverage programs to reimburse test retailers directly, they may require participants to submit claims for reimbursement using existing claims procedures. However, health plans cannot limit coverage to preferred pharmacies or other retailers.

Also, while a plan cannot limit the number of tests ordered by a health care provider, plans may limit the total number of OTC COVID-19 tests available to participants without cost-sharing to no less than eight tests per month (or over 30 days). This limit applies separately to each participant in the plan. So, if four people share “family coverage,” they could obtain 32 home tests over a month without the application of cost-sharing.

The FAQs include a safe harbor for plans that create qualified “direct-to-consumer” programs for their plan participants to access rapid home tests without direct payment at the retailer. Suppose a health plan abides by the following rules. In that case, they may limit the overall amount they reimburse plan participants for home tests to $12 (or the test’s actual cost, if lower) if the plan participant does not take advantage of their “direct to consumer” program.

For a plan’s direct-to-consumer program to qualify to limit reimbursement amounts, that program must:

  • Not require participants to seek reimbursement post-purchase;
  • Have the systems and technology in place to process payments directly with no upfront out-of-pocket costs; and
  • Be available through an adequate number of retail locations (including both in-person and online locations).

There may be cases when a plan elects this safe harbor but temporarily cannot meet all the requirements (for example, due to shipping delays). If this happens, the plan cannot limit the amount it reimburses participants who purchase coverage elsewhere during that period. Finally, plans may take steps to avoid fraud, such as requiring people to certify that tests are for personal use and not for resale or employment purposes or asking for proof of purchase when a participant seeks direct reimbursement.

On the same day that the Administration issued the guidance requiring health plans to treat OTC Covid tests as preventive care, the Occupational Safety and Health Administration (OSHA) began the first phase of enforcing its vaccination or test mandate. This emergency temporary standard requires companies with 100 or more employees to require applicable employees to either provide proof of COVID-19 vaccination or require them to submit to testing weekly. OSHA can do this because, on December 20, 2021, the U.S. Court of Appeals for the Sixth Circuit found that the Biden Administration “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces” and overturned a preexisting national stay on the requirements. So, as of right now, employers subject to the mandate need to:

  • Have an official vaccination policy that meets federal requirements.
  • Provide employees with four hours of paid leave to get their first or second vaccine doses.
  • Require employees to provide notice of positive COVID-19 test or COVID-19 diagnosis promptly.
  • Remove any employee who receives a positive COVID-19 test or COVID-19 diagnosis from the physical workplace (employees who test positive may continue to work remotely).
  • Require employees who are not fully vaccinated to wear face coverings when indoors or when occupying a vehicle with another person for work purposes.
  • Report work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 inpatient hospitalizations within 24 hours.
  • Then, by February 9, 2022, employers must:
  • Require unvaccinated employees to be tested for COVID-19 at least weekly (if in the workplace at least once a week).  Tests must be within seven days before returning to work if someone was away from the workplace for a week or longer.
  • Record each COVID-19 test result that each employee provides and keep the results.

Meanwhile, litigation challenging the vaccination or testing mandate continues. The Supreme Court of the United States (SCOTUS) heard expedited oral arguments on January 7, 2021, challenging the Biden administration’s authority to impose the mandate on large employers. The Court is currently considering whether the emergency standard can remain in place while lower courts consider its legality. While most of the Court seemed skeptical of the mandate during the questioning period, as of yet, they have not ruled on if enforcement can continue. So, until they do, large employers need to move forward with compliance. If the situation changes, GPAHU will let our members know as soon as possible.

Pennsylvania Prepares to Implement Surprise Billing Protections

Another part of the CAA that took effect on January 1, 2022, is the new federal protections against balance bills for medical care services. This part of the law will protect patients from surprise bills by requiring that emergency services be billed as in-network, without needing prior approval, and certain non-emergency services at an in-network facility provided by out-of-network ancillary providers are also covered as in-network. While these are federal protections and apply to fully insured and self-funded health plans, the Pennsylvania Insurance Department (PID) does have a role in enforcing the law’s requirements as they apply to health insurance carriers operating in the Commonwealth.

To facilitate state authority, Governor Tom Wolf signed an Executive Order designating the PID as the lead agency to coordinate the No Surprises Act in the Commonwealth.  Patients who receive a surprise medical bill for services provided on or after January 1, 2022, may contact the Insurance Department at with any questions or to file a complaint.  Patients may also seek assistance from their health plan.

The federal balance billing protections apply to major medical coverage offered by employers, individual coverage obtained through Pennie, Pennsylvania’s state-based Marketplace, and other individual market health insurance. It does not apply to consumers with Medicare, Medicaid, CHIP, or Tricare since these programs already include balance billing protections. The protections also do not apply to consumers with short-term or other limited benefit coverage.

Check This Out!

If you want to expand your health policy knowledge beyond this newsletter, here is a resource to check out!

The National Institute for Health Care Reform (NIHCR)’s mission is to conduct high-quality, objective research and policy analyses of the organization, financing, and delivery of health care in the United States. The Institute works to identify key health policy issues, identify policy options, and assess the advantages and disadvantages of policy options to help inform policymakers and other decision-makers about expanding access to high-quality, affordable health care to all Americans.

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