Comply With Us

Group Health Plan Compliance IS Harder Now Than Ever Before—The Facts and Our To-do Lists Do Not Lie!

March 25, 2021

Are you feeling overwhelmed these days, friends?  Our mountain of work certainly seems a mile high. Worse, our dark circles have overpowered even our most expensive concealer. We were blaming the pandemic generally for a while because COVID-19 does make everything worse.  However, a more in-depth review revealed our main problem is we feel professionally busier right now than ever before, including how things seemed during the implementation of the Affordable Care Act. (And just to show off a little bit, one of us handled ACA implementation while pregnant; the other one did it with a newborn!)  

More reflection showed that we aren't just wallowing in feelings. Our predicament (and we are guessing yours too) is grounded in facts. Not one but TWO major federal laws that directly affect many aspects of private health insurance and employer-sponsored benefits became law in the last three months. We can't blame politics because two different Presidents signed them. Plus there is the myriad of regulations, notices, and other critical federal guidance that's landed on our laps over the past few months.  

Just looking at the laws, let’s compare the relevant details:

The Affordable Care Act (ACA) is 974 pages long. Since most of the ACA actually addresses Medicare and Medicaid issues, only about 230 of those pages direct affects private health insurance coverage (and quite a few of those pages concern the individual health insurance market—a minefield that we try to avoid as much as possible). It took approximately two years of Congressional activity for it the ACA to become law on March 23, 2010.  The vast majority of its requirements for group health plan sponsors and health insurance issuers went into effect over three years later, on January 1, 2014.  Arguably the most significant requirement—the employer shared responsibility provisions (aka the employer mandate) and its related information reporting requirements—was delayed by an additional year.  For those counting, that’s FIVE years after President Obama signed the ACA. 

The printer-friendly version of the Consolidated Appropriations Act of 2021 is 2124 pages long.  At least 203 pages of it directly relate to private health insurance coverage and employer-sponsored group benefit plans. Let's take the earliest date possible to start counting when Congress began considering the start of this measure--May 15, 2020, when the House of Representatives passed the original version of the HEROES Act. Using that starting point means roughly seven months passed between conception and enactment. But we all know the details came together one weekend in late December. That time of year when no one, particularly those in the employee benefits industry, has ANYTHING else going on. Some of the CAA provisions took effect retroactively, others immediately, and one major one began 45 days later. The rest of the critical and complicated requirements will either take effect on December 27, 2021 or apply to plan years starting on or after January 1, 2022.  So, at most, ONE year until full compliance. 

Then came the American Rescue Plan Act.  It's relatively short at 242 pages, and only 50 of them address employee benefits and health insurance coverage. But for those keeping track, we are now up to 253 pages of things we have to know inside out and Congress uses a tinier font than you’d think, given the average of its members. That’s 23 pages MORE than the 230 relevant pages of the ACA.  Also, there were less than six weeks between when the original version of the ARPA's text first appeared and the law's final passage. To pile on, quite a few of its key provisions apply retroactively.  Others begin on April 1, 2021.  Pretty much all of it affects plans in place right now.  So basically, ZERO time till full compliance.  

We could probably just leave it at that—conclusive proof that we are not losing our minds (no matter how much our families claim otherwise). We (and you) have more to deal with compliance-wise than ever before.  

However, we don't like to just vent to you, friends. At MZQ, our goal is to help people. So here's a sneak peek at our private bullet journals. We're revealing items on our recent time-logs and to-do lists, in case you want to copy or just enjoy!  

  1. Decide when to start urging employers to make all of the necessary changes to their Section 125 plan documents. Should we begin helping clients who are asking about it make plan amendments now? Or, should we tell them that they have plenty of time/wait to see if there be a new piece of guidance that creates other Section 125 options/makes half of the work we’ve done on this to-date irrelevant in the near-term future?  
  2. Make a giant chart or some type of Excel-based calculator to try and figure out who qualifies for COBRA subsidies, cross-referencing when: (1) their subsidies might run-out based on individual maximum benefit periods, (2) how long each individual still has to make a COBRA election in the “outbreak period,” based on their qualifying event; and (3) how much a person might need to pay in back COBRA premium costs eventually, taking into consideration what they did not pay over the past X number of "outbreak period" months before their subsidies kicked in. Look into patenting/copywriting it under the name of “The COBRA-LATOR.”
  3. Create the slide deck for our webinar on the new CAA requirement that all individual and group plans create a mental health and substance abuse disorder treatment parity non-quantitative treatment limitation analyses right away. The information is of no use to anyone when circulating like crazy in our brains. All of the people signed up for the free event on April 6, 2021, at 2:00 pm Eastern would like to see it presented on slides, preferably concise and attractive ones.
  4. Convince a child or two to make us tea and also perhaps bake some cookies. Jen's cookies must be gluten-free and dairy-free. Find a recipe.
  5. List out all the new incentives/changes we need to internalize that both applicable employers and employees will get if they continue to offer FFCRA paid sick and expanded family medical leave this year. Develop a standard reply to people who ask us, explaining that even though the ARPA adds a lot of stuff to the FFCRA leave requirements, for 2021, offering this leave remains optional.
  6. Memorize the differences between the online “advance EOB tool” requirements in the CAA and the very similar but also entirely different conditions in the final plan transparency rule.  At the same time, wonder if, when, and how the Biden Administration might attempt to reconcile the two requirements. It will be a shame if self-funded employer groups don't have to do both things.  
  7. Ponder surprise billing. When will the rules come out? Will it be the best thing ever for reference-based pricing or the most complicated or both?  How often will health plans and providers go to arbitration? Who exactly is going to volunteer to referee these things? Is it going to make things simpler for consumers and reduce costs or have the opposite effect?  Does anyone else think about these things while they figure out what they want for lunch?
  8. Order Mexican. See if they will deliver Margaritas in a go-cup. Ignore the judgmental person on the other end of the line who says the restaurant will start serving lunch and alcohol after 11 am.
  9. Figure out how to make a user-friendly tool that tabulates all of the compensation group health plan brokers and service providers make related to each group, both indirectly and directly. Also, determine how to add features that sift out compensation under $1000 and generate an attractive report that includes all required data elements to give to group health plan fiduciaries. Inquire if anyone nabbed "The COMP-ALATOR" as a name when we finally get around to calling the copyright people.
  10. Make a chart documenting the out-of-network claims look-back and reporting cycle group health plans will need to follow to keep their "machine-readable" transparency disclosure files accurate once they need to disclose all of it online in January. Panic a little bit because, based on current deadlines, groups will need to start doing this work soon as August.
  11. Wonder if self-funded group plan sponsors will be able to convince their service providers (particularly the PBMs) to disclose all of the health and pharmacy claims data they will need to put in these machine-readable files. Remember that they'll also need this information for the ginormous looming new federal employer pharmacy and health claims data reporting requirement for employers of all sizes that will hit sometime in the next year (deadline TBD).  Related—Add "the 55,000" to the list of names that need to be copyrighted because this new requirement is 100 times worse than the Form 5500 filing requirement.  Also, it applies to approximately 100 times more employers.
  12. Apologize to our families (again) for talking about COBRA at dinner and expecting them to know the difference between involuntary and voluntary termination of benefits (again). 
  13. Ensure any clients who need help figuring out how to tabulate their health insurance costs to claim a retention tax credit, an FFCRA paid leave tax credit, or get PPP loan forgiveness do understand the relevant instructions.  Pray that the Mexican food place got their PPP loan and won't have to close because even though the one person who answers the phone is rude, the food is good, and the Margaritas are stellar.
  14. Tell all clients they need to revise every service agreement they have to accommodate all of the new transparency requirements, the hot mess that now is COBRA, mental health parity analyses, the coming "55,000" requirements, surprise billing, and probably three other big things we Freudianly forgot.
  15. Text each other reminders that only boring people get bored, and thanks to the bipartisan actions of Congress and efforts of two presidential administrations, we are never bored.  We’ll never be boring either, at least to each other, and, we hope, to our health benefits nerdy friends!