GPAHU Pulse – Late October 2021

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.

The Employee Benefit Research Institute (EBRI) annually analyzes its unique database of information about more than 11.4 million HSAs, to shed light on the ways HSA account holders contribute to, withdraw from, and invest in their HSAs. Their 2021 analysis shows that employer contributions can play a role in fostering accountholder’s engagement with their HSAs. Accounts that received an employer contribution showed several signs of optimal usage, including higher total contributions and a greater likelihood of investments other than cash. However, EBRI’s analysis also reveals that these account holders were more likely to take a distribution. These distributions were more significant than those by account holders who did not receive an employer contribution too.

Source: Spiegel, Jake and Fronstin, Paul. Health Savings Account Balances, Contributions, Distributions, and Other Vital Statistics: Evidence From the EBRI HSA Database., Benefits Research Institute, October 14, 2021.

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 Federal Guidance Addresses How COVID-19 Vaccines May Affect Employers and Group Health Plans

The Biden Administration recently issued two new pieces of sub-regulatory guidance regarding COVID-19 vaccinations. The Department of Health and Human Services (HHS) released FAQs about the applicability (or lack thereof) of HIPAA privacy requirements related to COVID-19 safety requirements.  People often improperly cite the HIPAA privacy requirements as to why private businesses or public entities should not inquire about an individual or employee’s vaccination status.  HIPAA doesn’t apply to companies asking about the vaccination status of patrons, nor does it impact when an employer asks an employee their vaccination status.  The HIPAA privacy rules also have nothing to do with mask requirements, including those imposed at worksites.  However, other federal or state laws related to vaccinations still apply.  For example, to comply with the Americans with Disabilities Act, employers need to protect the privacy of vaccination records and store them separately from other employment records.

The other FAQs came from the Department of Labor (DOL), and they address group health plan coverage of COVID-19 vaccines.  All non-grandfathered individual and group health plans must cover any COVID-19 vaccinations provided under an Emergency Use Authorization (EUA) or a Biologics License Application (BLA) on a first-dollar basis. This “free” coverage must include “booster” doses and vaccines given to children when the FDA expands access to various COVID-19 vaccines based on age.

The DOL FAQs also address incenting employees to get vaccinated, including applying health plan premiums discounts and surcharges.  Employers can do either, but either action creates an activity-based health-contingent wellness program subject to all wellness program rules.  So, any reward or penalty is capped at 30% of the total annual cost of coverage. Plus, the plan must provide a “reasonable alternative” to any participant who can show that vaccination is “unreasonably difficult due to a medical condition or medically inadvisable.”  Plans with a vaccination-based wellness program must inform all participants about the availability of reasonable alternatives.  Examples could be allowing people who can’t be vaccinated for medical reasons to work from home or always following CDC mask guidelines in the workplace. 

Finally, the DOL FAQs clarify the link between wellness program incentives and the ACA’s affordability requirements and related employer-shared responsibility (employer mandate) penalties.  If an individual’s premium contribution for health coverage goes up because they are not vaccinated, that surcharge counts when determining affordability.  So large employers considering a vaccination surcharge need to be mindful of potentially triggering ACA penalties. 

PA Legislature Votes to Extend Dozens of COVID-19 Regulatory Waivers

The Pennsylvania legislature recently voted unanimously to extend dozens of expiring regulatory waivers put into place last year to help healthcare providers fight COVID-19.  The extensions will last until March of 2022 unless Governor Wolf decides to end any of them earlier.

Some of the critical waivers extended are those allowing out-of-state practitioners to treat Pennsylvania patients, permitting retired or lapsed professionals to return to medicine, and increasing the number of people allowed to give a vaccine. The waivers also enable patients to access care via telemedicine, which currently is neither authorized nor prohibited by Pennsylvania law. This gray area has long created uncertainty for healthcare providers, carriers, and group health plan sponsors, but for now, no one needs to worry about telemedicine benefits!

The legislature is considering several bills to make some of the suspensions permanent, including measures to clarify the legality of the practice of telemedicine. The Joint State Government Commission is studying the impact of the waivers and plans to make recommendations as to which should stay in place to remove barriers to employment in the state. A report on this topic is expected to by the end of October. 

Pennsylvania Insurance Department Releases 2022 Individual and Small Group ACA Plan Rates

The 2022 Individual and Small Group Affordable Care Act (ACA) health insurance rates are out!  Overall, individual coverage rates went up an average of .02 percent statewide, and there will be a 4.5 percent average increase in the small group market. The state reinsurance program, created in 2019 through PAHU-supported legislation, is the reason for the flat individual market rates.  According to the Pennsylvania Insurance Department, 2022 individual market premiums would be 5.5% higher without the reinsurance program.

Based on the products now approved by the Department, all insurers currently offering individual market coverage in Pennsylvania’s 67 counties will continue to provide plans in 2022. Plus, 25 counties will gain a new insurer offering coverage through Pennie, the state-based health insurance exchange. Every county in Pennsylvania will have at least two health insurers, and for the first time, some counties will have six insurers offering individual coverage. With the addition of Cigna Health and Life Insurance Company, Pennsylvania will now have eight insurers offering health coverage plans, the most the commonwealth has seen since the passage of the ACA.

Check This Out!

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

Last December, an amendment to the federal Medical Health Parity and Addiction Equity Act required all employer group health plan sponsors to develop an analysis of how their plan meets parity requirements by February 10, 2021, and keep it up-to-date.  (In the case of fully insured groups, the carrier should provide it). Parity can be hard to understand, but this infographic from the National Alliance on Mental Illness offers a straightforward explanation you can even share with clients.

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