We know it’s still December, but what can we say? We’re planners, and we are also kind of obsessed with our work. So, it should come as no surprise to you, friends, that we are already thinking and talking about what the top benefit plan compliance challenges of 2023 will be.
To break them down, we’re going to start the next sentence with words we honestly never thought we’d write, but we can’t stop ourselves, because they do work perfectly in this circumstance. To quote Donald Rumsfeld, “There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.”
The first round of reporting is due on December 27, 2022. However, the burden of gathering data for self-funded plans is high, the flow of data from plan vendors is slow, and the number of quality resources for data-gathering for plan sponsors is infinitesimal. So, we wonder, what’s going to happen to group plan sponsors that do not get their 2020 and 2021 data in on time? Also, plan sponsors need to be making plans for their 2022 data submissions, which are due on June 1, 2023. While that seems far off now, since groups need to include run-out claims, there really will be very little time to gather and prepare data for the next round of reporting.
All group health plans are required to maintain CURRENT written analyses of how all their plan’s nonquantitative treatment limitations (NQTLs) meet or do not meet federal mental health parity standards. They are also supposed to be testing their plan’s quantitative treatment limitations (QTLs) annually to make sure cost sharing is appropriate for the coming year. The DOL is actively enforcing these requirements now, and many plans aren’t prepared.
The deadline for groups to get their machine-readable files of claims data online varied by plan year, but all groups should have their information online by December 31, 2022, and every group needs a strategy to keep these files current. Also, by January 1, 2023, all group plans need to have an online searchable tool for participants to search for the cost of 500 common covered services. By January 1, 2024, the tool needs to include the cost of all covered services. Plan sponsors can rely on a carrier, third-party administrator, or other vendor to fulfill this obligation on their behalf. But, when relying on a third party, the plan sponsor needs to have a written agreement in place with that third party. Also, while fully insured groups can transfer liability for these requirements via written agreement, self-funded plan sponsors retain ultimate legal responsibility, even when they outsource via contract.
Applicable large employers and self-funded group health plans should be fairly used to ACA employer reporting requirements by now, since they’ve been required to comply since 2015. However, things are getting trickier… First, the “good faith compliance” standard is no longer available, making it harder for plan sponsors to obtain grace from the IRS in the event of any reporting mistakes. Also, the new “ACA family glitch” rules and the related Section 125 plan allowable changes, as well as the expansion of premium tax credit subsidies through 2025, mean it’s much more likely for people who are eligible for group coverage to leave their plan and seek tax credits through the exchange marketplace. Finally, the federal affordability percentage is the lowest it has ever been, meaning that employers will need to double-check their contribution rates to make sure they aren’t inadvertently putting themselves at risk for a high fine.
An oldie, but a goodie. Every group needs to have current ERISA and Section 125 plan documents on hand, ready to give to plan participants and/or federal regulators at a moment’s notice. Perhaps there’s a unicorn group out there that hasn’t updated one thing in their plan since last year, but we’ve never seen one. So do yourself a favor, review your files in 2023, make all necessary plan amendments, and distribute documents accordingly!
Eventually (fingers crossed), COVID-19 will be fully under control and the Biden Administration will be able to end the public health emergency and national emergency periods. This will PROBABLY happen at some point during 2023. When it does, group health plans will have to unwind COVID-19 related deadline changes and other mandates, which will probably be a messy process.
Right now, there are quite a few healthcare-related lawsuits making their way through the federal appeals system. Cases include a challenge to the ACA’s preventive care coverage requirements, various challenges to the ACA’s nondiscrimination requirements, and cases targeting federal surprise billing regulations. Plus, there’s always the possibility that a new case with employee benefit implications will be filed at any time…
The Biden Administration is always putting out new regulations and sub-regulatory guidance affecting health plans. We’re waiting on regulations addressing advance explanation of benefit requirements, mental health parity enforcement and implementation guidance, and more rules implementing the Consolidated Appropriations Act. These include changes to employee benefit ID cards, surprise billing requirements, and more plan transparency and RxDC reporting guidance. Also, the annual catch-all regulation for health plans, the 2024 Notice of Payment and Parameters, is typically issued in late winter.
The Democrats retain control of Congress until January 3, 2023. Between now and then, legislators need to deal with some pressing fiscal issues like passing an omnibus spending measure and potentially dealing with the federal debt ceiling. However, Congressional leaders have been known to sneak all kinds of important healthcare measures into end-of-year spending measures (the whole “No Surprises Act” section of the CAA and COBRA being two glaring examples). We’re not sure how the next few weeks in Congress will shake out, but last-minute legislative possibilities we’ve heard discussed include increases to employer penalties for MHPAEA noncompliance, expanding the DOL’s authority to go after plan vendors when it comes to parity compliance, other improvements to mental health and substance use disorder care, Medicare provider reimbursements, an extension of telehealth provisions related to health savings accounts, other changes to maintain telehealth access created during the pandemic, and actions intended to reduce prescription drug prices.
Right now, we know the Democrats will be in control of the United States Senate for the start of the 118th Congress, and the GOP will control the House of Representatives. Voting margins in both chambers are super tight, though, and bipartisan cooperation doesn’t seem to be high on anyone’s agenda. However, items like the price of prescription drugs and insulin, mental health and substance use disorder care, telemedicine, Medicare and Medicare Advantage issues, and cybersecurity protections related to health plans and healthcare providers could spark collaborative action. We’ll have to wait and see. We gave up making political predictions after the gold escalator announcement was successful.
What do you think, friends? Do you have your 2023 planner filled out yet? What knowns and unknowns are on your radar screens? Let us know and, as always, we’re only an email, phone call, text, or bat signal away if you need help with any of the items listed above!