GPAHU Pulse – June 2023

Here is something to mention when discussing cost and benefit trends with clients in the month ahead.

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!

New State Law on Insurance Cybersecurity  

On June 14, 2023, Governor Josh Shapiro signed the Pennsylvania Insurance Data Security Act (H.B. 739) into law. The new measure creates specific state cybersecurity requirements for both insurance carriers and licensed insurance agents and brokers.  It is based on a model law developed by the National Association of Insurance Commissioners that has been adopted by 21 other states. The law will require Pennsylvania Insurance Department (PID) licensees to conduct cybersecurity risk assessments, develop cybersecurity protocols, and report data breaches and cybersecurity events to the PID.

The law does include two exemptions that will cover most GPAHU members from many of the law’s requirements.  There is a small business exemption for the requirements concerning risk assessments, maintaining an internal cyber security requirement, corporate and third-party service provider oversight, and making certifications to the PID. Also, there is a broad exemption for licensees who comply with the HIPAA/HITECH privacy and data security requirements.  However, neither of these exemptions covers the requirement to notify the PID in the case of a cybersecurity incident that meets certain criteria.  If one occurs, a licensee must notify the PID as soon as possible, but no later than five business days. The cybersecurity provisions in the new law take effect in 180 days, or December 11, 2023.

We will continue to provide updates as guidance and regulations are established for this new law.

Preventive Care Ruling Stayed by Appeals Court

The U.S. Court of Appeals for the Fifth Circuit in New Orleans recently put a hold on a U.S. District Court decision in Braidwood Management v. Becerra that struck down parts of the Affordable Care Act’s (ACA) preventive care coverage requirements. The U.S. Department of Justice is appealing the final judgment issued on March 30, 2023, U.S. by District Court Judge Reed O’Connor of the Northern District of Texas. Judge O’Connor found that health plans cannot be required to cover the services with an A or B rating recommended by the USPSTF after the passage of the ACA free of charge. His ruling further states that employers with religious objections to PrEP HIV medications cannot be required to cover those medications. 

Due to the Fifth Circuit Court’s action, as the appeal process plays out in this case, health insurers and group health plan sponsors will still be required to provide all the following preventive care services to be provided to participants in non-grandfathered health plans without cost-sharing:

• Services with an A or B rating in the current recommendations of the U.S. Preventive Services Task Force (USPSTF);
• Preventive care and screenings for infants, children, and adolescents in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA);
• Preventive care and screenings for women’s health specified in HRSA guidelines; and
• Immunizations recommended by the Advisory Committee on Immunization Practices (ACIP).

It is anticipated that the Supreme Court of the United States will be the ultimate arbiter of this case.

Biden Administration Finalizes 2024 Notice of Benefit and Payment Parameters

The federal Centers for Medicare and Medicaid Services (CMS) recently finalized the 2024 Notice of Benefit and Payment Parameters (NBPP), an annual catch-all regulation addressing private and health insurance exchange marketplace issues for the year ahead.  While in previous years the regulation contained widespread requirements for the whole private market, the 2024 NBPP primarily focuses on the individual health insurance exchange marketplace and qualified health plans.  There are some important provisions that directly impact health insurance agents and brokers who serve the exchange marketplace, including:

• New rules requiring agents, brokers, or web brokers serving the health insurance exchange market to document receipt of consent from the consumer or the consumer’s authorized representative prior to providing service and retain it for ten years. According to CMS, this change will help resolve disputes between enrolling entities and consumers, or between multiple enrolling entities, and assist with enforcement efforts.

• If there is an issue with a federal exchange-certified agent, broker, or web broker and they are suspended from providing services, then the rules allow CMS 15 additional days to review evidence to rebut allegations that led to the suspension of their marketplace agreement(s) or to request reconsideration of termination of their marketplace agreement(s). They will have an additional 30 calendar days, or a total of up to 60 calendar days, to review reconsideration requests and notify the submitting agents, brokers, or web brokers of any reconsideration decision related to the termination of their Marketplace agreement(s).

• The regulation will permit all non-agent exchange health insurance assisters to conduct direct door-to-door enrollment assistance. Health insurance navigators, certified application counselors, and assisters cannot sell, solicit, or negotiate insurance coverage, but they may conduct outreach enrollment outreach, assistance, and education. According to the CMS, lifting the ban on door-to-door enrollment assistance will increase access to coverage.

These requirements will take effect on January 1, 2024.

Check This Out!

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

The National Health Expenditure Projections for 2022-2031 are out.  National health expenditures are projected to grow 5.4 percent, on average, over the course of 2022–31 and to account for roughly 20 percent of the economy by the end of that period.

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