From fostering a workplace culture centered on supporting the physical, emotional, career and financial wellbeing of employees, to ensuring that benefit programs are compliant with local, state and federal requirements, effectively protecting the wellbeing of your employees connects directly to protecting the wellbeing of your organization overall.
Compliance Connections delivers actionable guidance designed to help you manage and optimize the connections between the compliance of your benefits and human resources programs to overall organizational wellbeing.
This edition focuses on compliance issues that may affect employer-sponsored health and welfare benefits in the year ahead. Below, we explore topics to help you be prepared for what we expect to see in 2024.
1. Evaluate whether new language taglines are needed
The Patient Protection and Affordable Care Act (ACA) requires certain services and notices, including specific claims and appeals notices and summaries of benefits and coverage (SBCs), to be provided in a "culturally and linguistically appropriate manner." More specifically, non-grandfathered group health plans are required to provide the following non-English language services:
- Oral language services (such as a telephone assistance hotline) that include answering questions in any applicable non-English language and providing assistance with filing claims and appeals (including external reviews) in any applicable non-English language
- Notices in any applicable non-English language, upon request
- In the English versions of all notices, a statement prominently displayed in any applicable non-English language clearly indicating how to access the language services provided by the plan or issuer (referred to as taglines).
An applicable non-English language is based on county data, and if 10% or more of the population residing in the county is literate only in the same non-English language, the requirements listed above are triggered. At the end of 2023, the Departments of Labor (DOL), Health and Human Services (HHS) and Treasury (collectively, the Departments) issued new county-specific data, adding four new languages, effective for plan years beginning on or after Jan. 1, 2025. Plan sponsors of non-grandfathered group health plans can use the data to determine which language taglines should be added to their SBC, or can simply add all of the taglines.
Are you prepared to comply with the added language requirements?
2. Ensure your NQLT comparative analysis is complete and available
The pandemic and opioid crisis increased attention on mental health and substance use disorders. As a result, the Departments have focused on compliance with the Mental Health and Addiction Equity Act (MHPAEA). MHPAEA doesn't require plans to cover mental health or substance use disorder benefits, but when a plan provides such coverage, it must be in parity with the plan's medical and surgical coverage within each classification of benefits in the plan's financial requirements, quantitative limits (e.g., day limits) and non-quantitative treatment limitations (NQTLs) (e.g., preauthorization, network composition). Additionally, in February 2021, group health plans were newly required to prepare and produce, upon request, an NQTL comparative analysis. The comparative analysis documents each mental health and substance use disorder NQTL and analyzes the processes, strategies and standards used in developing and applying a particular NQTL to prove the benefits are in parity with medical and surgical benefits, as applicable to that NQTL. The analysis must be performed, retained and made available for review by the Departments (and for ERISA plans, to participants), upon request. In mid-2023, the Departments issued new proposed regulations that, if finalized, would also require ERISA plan fiduciaries to certify the completeness and accuracy of the analysis. Plan sponsors should involve their insurer and third-party administrators (TPAs) in this process, since those parties more often design and apply NQTLs and have (or can more easily produce) the data analysis to back up the design and application.
What attention do you need to give to your NQTL comparative analysis?
3. Be prepared for new MHPAEA rules
Under current MHPAEA rules, as long as a plan's NQTLs are comparable to and applied no more stringently than the standards used in applying those NQTLs to medical and surgical benefits, the plan meets the parity requirement; however, if the proposed MHPAEA regulations are finalized as written, plan sponsors will need to perform three separate analyses: a mathematical test, a design and application test and a data analysis. The proposed regulations also redefine important terms to provide consistency between plans on what constitutes a mental health condition versus a medical condition. Further, the proposed rules require meaningful benefits to be provided in all six benefit classifications if provided in one classification. For example, if the plan provides coverage for in-network outpatient care for autism spectrum disorder (ASD), the plan must also provide coverage for ASD in the other five classifications, including emergencies, prescription drugs and inpatient care, both in- and out-of-network. Plan sponsors will need to engage with their insurers and third party administrators if these rules are finalized.
How are you preparing to comply with the new MHPAEA rules?
4. Be on the lookout for continued telemedicine flexibility
In 2021, in response to COVID-19, the Coronavirus Aid, Relief and Economic Security (CARES) Act amended the Internal Revenue Code (Code) to provide relief for telemedicine services, allowing first dollar coverage for telehealth services under a qualifying high-deductible health plan (HDHP), without jeopardizing the individual's ability to contribute to a health savings account (HSA). Although this relief was originally intended to be brief, it's repeatedly been extended. The current extension is available for plan years beginning after December 31, 2022 and before January 1, 2025. For calendar year HDHPs, without new Congressional action, plan sponsors will be required to charge a participant at least fair market value for non-preventive telemedicine interactions until the participant meets their HDHP statutory minimum deductible. In either case, plan sponsors will want to watch this area, in order to communicate the rules to participants and to respond to the end of the relief, if that occurs.
How are you preparing to communicate with participants about this relief?
5. Stay informed about preventive care litigation
In 2022, a Texas federal court determined a portion of the ACA preventive care mandate was unconstitutional. In Braidwood v. Becerra, the court found that the United States Preventive Services Task Force (USPSTF) wasn't correctly appointed under the US Constitution. The USPSTF is one of three groups that make recommendations to the HHS Secretary about which items and services should be included in the ACA preventive care mandate. Their "A" and "B" rated recommendations must be covered without cost sharing by non-grandfathered group health plans. For example, the USPSTF recommends, and therefore the ACA requires, coverage for colonoscopies, PrEP to decrease risk of HIV and breast cancer screenings. In 2023, the Texas court vacated USPSTF's post-ACA recommendations. The decision was appealed to and stayed by the Fifth Circuit Court of Appeals, permitting the Departments to continue enforcement until the appeal process is complete. This case will likely to make its way to the Supreme Court before we have the final decision.
How are you staying informed about this important topic?
This is a preview edition of Compliance Connections, a publication produced by Gallagher's Compliance Consulting practice. For five more action steps, contact your Gallagher representative.
Compliance is a series of actions, not a final destination. As a trusted advisor, Gallagher has developed this Compliance Connections series to help you pursue a path through employee benefits compliance issues as part of an overall continuing compliance plan. Employers should carefully evaluate their health and welfare plans to determine if they are in compliance with both federal and state law. If you have any questions about one or more of the compliance requirements listed above, or would like additional information on how Gallagher constantly monitors laws and regulations impacting employee benefits in order to support employers in their compliance efforts, please contact your Gallagher representative.
