GPAHU Pulse – November 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 Kaiser Family Foundation recently released its annual benchmarking report, the oldest survey of its kind and considered the industry gold standard. According to this year’s report, which results from 1,686 interviews with non-federal public and private companies of all sizes, the average annual premiums for employer-sponsored family health coverage reached $22,221 this year. This number is up 4% from last year, with workers on average paying $5,969 toward the cost of their coverage. The average deductible among covered workers in a plan with a general annual deductible is $1,669 for single coverage. Fifty-eight percent of small firms and 99% of large firms offer health benefits to at least some of their workers, with an overall offer rate of 59%.

Source: Spiegel, Jake and Fronstin, Paul. Source: 2021 Employer Health Benefits Survey, Kaiser Family Foundation, November 10, 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!

Biden Administration Halts Enforcement of its COVID-19 Testing or Vaccination Policy Mandate for Large Employers Pending Litigation

On November 17, 2021, the Biden Administration announced it would suspend enforcement of its controversial COVID-19 vaccination and testing emergency temporary standard (ETS) for large employers pending the results of ongoing federal appeals court action.  The Administration will continue to defend the legality of the new regulation in federal court. Still, the Occupational, Safety, and Health Administration (OSHA) has suspended activities related to enforcement and implementation of the rule for the time being.

The purpose of the ETS was to require businesses with 100 or more employees to impose a COVID-19 vaccination requirement on their workforce or implement mandatory weekly COVID-19 testing and masking protocols for the unvaccinated. The ETS was to have been fully effective by January 4, 2022, but employers subject to the ETS were supposed to fulfill numerous compliance steps on or before December 6, 2021. However, almost immediately after the ETS appeared in the Federal Register on November 5, 2021, a consortium of large employers and the States of Louisiana, Mississippi, South Carolina, Texas, and Utah filed suit challenging the constitutionality of the ETS. The U.S. Court of Appeals for the 5th Circuit put an emergency and temporary halt on the new regulation in response. Meanwhile, many others filed cases in other federal courts around the country. These cases were consolidated into one suit, pending before the U.S. Court of Appeals for the 6th Circuit.

Based on the status of these cases, OSHA posted the following statement on its website for the ETS:

“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

Given OSHA’s current position, it seems very unlikely that the Biden Administration will be able to change course and begin enforcing the ETS’s many requirements for employers due by December 6, 2021. It is, however, essential to note that there is every indication that if further court action allows the Biden Administration to implement and enforce the new requirements, they will do so posthaste. So, while the final fate of the mandate is very uncertain, the prudent course of action for affected large employers is to prepare for the possibility of ultimate enforcement.

Biden Administration Releases Interim Final Rule On New Annual Health Care Claims and RX Cost Data Reporting Requirement

The Biden Administration just released an Interim Final Rule addressing how individual and group health insurance plans must comply with a new annual medical care and prescription drug cost data reporting requirement. Initially, it seemed that individual employers of all sizes who offer health insurance coverage to employees would need to submit their own reports based on their specific group claims and prescription drug cost data. However, the Administration responded to logistical, cost, and privacy concerns articulated by NAHU and others. Now, data reporting will be on aggregate state/market levels rather than separately for each plan. Accordingly, carriers, TPAs, and PBMs will likely be able to shoulder most of a reporting responsibility that previously seemed like it would fall on employer group health plan sponsors of all sizes.

The “No Surprises Act” portion of the Consolidation Appropriations Act of 2020 requires all individual and group health insurance carriers and employers plan sponsors tosubmit detailed prescription drug and other health care spending data to the federal government annually. Initially, the first due date for this reporting was to be December 27, 2021, and then future reports would be due every June 1 after that. However, earlier this year, the Biden Administration delayed those deadlines and told all employers and group and individual insurance carriers to prepare to report for the 2020 and 2021 calendar years as of December 27, 2022. The Administration also asked interested parties to provide information about potential reporting logistical issues. NAHU provided detailed concerns about how difficult meeting these requirements on the group level would be for employers of all sizes, particularly on smaller employers without access to claims data. The report must include the following required elements:  

  • General information regarding the plan or coverage;
  • Enrollment and premium information, including average monthly premiums paid by employees versus employers;
  • Total health care spending, broken down by type of cost (hospital care; primary care; specialty care; prescription drugs; and other medical costs, including wellness services), including prescription drug spending by enrollees versus employers and issuers;
  • The 50 most frequently dispensed brand prescription drugs;
  • The 50 costliest prescription drugs by total annual spending;
  • The 50 prescription drugs with the most significant increase in plan or coverage expenditures from the previous year;
  • Prescription drug rebates, fees, and other remuneration paid by drug manufacturers to the plan or issuer in each therapeutic class of drugs, as well as for each of the 25 drugs that yielded the highest amount of rebates; and
  • The impact of prescription drug rebates, fees, and other remuneration on premiums and out-of-pocket costs.

Based on the feedback NAHU and others provided, the Administration decided to require the collection of aggregate data rather than employer-specific information. The national association will provide comments to the federal government about implementation and more guidance to the membership about compliance responsibilities in the coming weeks. However, based on initial analysis, it seems group clients will be able to delegate at least some reporting responsibilities through their service agreements.

Pennie Broker Recertification Deadline Extended Through December 15

Pennie, the Commonwealth of Pennsylvania’s state-based health insurance exchange, is officially open for its second year and actively accepting 2022 plan year business. Pennie Open Enrollment started on November 1, 2021, extending through January 15, 2022. Pennie welcomes individual business sold and serviced by brokers, but brokers must complete certification training the first year they bring business to Pennie and recertification in the out-years.

The exchange recently extended its recertification deadline to Pennie’s 2020-2021 certified brokers. Pennie-certified agents and brokers must complete a recertification training course no later than December 15, 2021. If they do not, their Pennie certification will lapse, and Pennie will remove their identification number (used to pay commissions) from their current Pennie client data. Furthermore, if recertification is not completed before December 15, 2021, the broker will be required to complete the entire new certification course. Suppose an existing Pennie broker misses the December 15 deadline and fails to achieve full certification by December 31. In that case, the result will be a complete loss of accreditation and loss of their entire Pennie book of business effective January 1, 2022.

Check This Out!

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

The Pennsylvania Partnerships for Children recently published an online statistical flip-book detailing Pennsylvania’s 2021 State of Children’s Health Care. The report focuses on how the COVID-19 pandemic affected health insurance coverage in the Commonwealth.

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