PPI Benefit Solutions

COVID-19 Updates

Biden Administration Mandates Vaccination or Testing for Most Employees

On September 9, 2021, the Biden administration announced that the federal government will require employers with 100 or more employees to ensure that those employees are either fully vaccinated against COVID-19 or test negative for COVID-19 on a weekly basis. The federal government will also require that most federal workers, federal contractors, and healthcare workers be vaccinated, without the option to test.

The DOL’s Occupational Safety and Health Administration (OSHA) is charged with promulgating rules to provide authority for this mandate as well as additional details. As a first step, OSHA is expected to issue an Emergency Temporary Standard (ETS) that will stand until formal rules are issued. The ETS is expected to provide the authority for the mandate and to require employers to provide paid leave to employees who need to get vaccinated or recover from any side-effects of the vaccination. OSHA is expected to release the ETS in the next few weeks.

Unfortunately, there are still many unanswered questions. For instance, it is not known how testing will be paid for, how the paid leave should be administered, and how penalties for noncompliance will be calculated. For further discussion, please check out episode 109 of our podcast entitled “Biden’s Vaccine Mandates & Testing Alternatives.” Employers should consult with legal counsel about their obligations to comply with these regulations once they are issued.

President Biden’s COVID-19 Action Plan »

Federal Updates

IRS Provides Guidance on Reporting Qualified Sick and Family Leave Wages

On September 7, 2021, the IRS issued Notice 2021-53. This notice provides guidance on how to report the amount of qualified sick and family leave wages paid to employees for leave taken in 2021 on Form W-2. This guidance includes considerations for such leave taken in accordance with the FFCRA, as amended by the CARES Act, and the American Rescue Plan Act (ARPA).

The FFCRA required employers with fewer than 500 employees to provide emergency paid sick leave (EPSL) and extended FMLA (EFMLA) for those employees for specific reasons relating to the pandemic. The employers had to front the cost of that leave; however, they were reimbursed for those costs by obtaining a tax credit. The CARES Act extended these leaves to March 31, 2021, but it became voluntary. Similarly, the ARPA extended the voluntary leaves until September 31, 2021, allowed employees to use EPSL for reasons related to the vaccine, and expanded the reasons employees could take EFMLA. More information on the ARPA amendments to these leaves can be found in this article in the March 18, 2021, edition of Compliance Corner.

The notice makes clear that employers must report these wages to employees in one of two ways: either on Form W-2, Box 14, or in a separate statement provided with the Form W-2. The guidance provides employers with model language to use as part of the Instructions for Employee for the Form W-2 or on the separate statement provided with the Form W-2.

Employers that chose to extend EPSL and EFMLA to their employees should be aware of this notice.

IRS Notice 2021-53 »

IRS Publishes the ACA’s Affordability Percentage and Individual’s Premium Tax Credit Table for 2022

On August 30, 2021, the IRS published Rev. Proc. 2021-36, which provides the 2022 premium tax credit (PTC) table and the employer contribution percentage requirements applicable for plan years beginning in calendar year 2022.

The ACA's (also known as the "employer mandate") require an employer to provide affordable, minimum value coverage to its full-time employees. The IRS's required contribution percentage is used to determine whether an employer-sponsored health plan offers an individual "affordable" coverage, and the affordability percentage is adjusted for inflation each year. In addition, the ACA also provides a refundable PTC, based on household income, to help individuals and families afford health insurance through affordable insurance exchanges. The IRS provides the PTC percentage table for individuals to calculate their PTC.

For 2022, the ACA's affordability percentage will decrease to 9.61% (down from 9.83% in 2021). For the employer mandate and affordability, this means that an employee's required premium contribution toward single-only coverage under an employer-sponsored group health plan can be no more than 9.61% of the federal poverty line or of an employee's W2 income or rate of pay (depending on which of the three affordability safe harbors the employer is relying upon).

In addition, the existing ACA premium tax credit was expanded in March 2021 by the ARPA for taxable years 2021 and 2022. The adjusted percentage for 2022 is the same as for 2021, and ranges from zero to 8.5%. The 2022 PTC table used to determine an individual's eligibility can be found in the IRS revenue procedure document.

The revenue procedure is effective for plan years beginning on and after December 31, 2021.

Employers should be mindful of the upcoming 2022 affordability percentages and make sure that the premium offerings for 2022 continue to be affordable for full-time employees, so as to avoid any employer shared responsibility penalties. The penalties related to employer shared responsibility remain the law (despite the fact that the ACA's individual mandate was repealed in 2019).

Revenue Procedure 2021-36 »

IRS Releases Two Letters Concerning HSAs and HDHPs

On June 25, 2021, the IRS released two information letters responding to the inquiries regarding whether the HSA excessive employer contribution error can be corrected and what amounts are counted toward the minimum annual deductible for an HDHP when a discount, rebate or coupon was provided for healthcare services or products. (Letters 2021-0008 and 2021-0014)

The first letter (2021-0008) addresses situations when an employer made excessive contributions to an employee’s HSA beyond the annual HSA contribution limit, as well as when an HSA custodian failed to provide a corrected Form 5948-SA.

The letter reminds that when an employer contributes more than the annual limit to an employee’s HSA inadvertently, the employer may correct the error. Specifically, at the employer’s option, the employer may ask the custodian to return the excess amount to the employer. If the employer does not recover the excess amount, the employer must include the amount on the employee’s Form W-2 as wages for the year the employer made contributions. Though it was not described in the letter, keep in mind that the excess contributions and net income attributable to such excess contributions need to be returned before the account holder’s federal income tax return filing deadline (including extensions) in order to avoid the 6% excise tax. (Reference: IRS Notice 2008-59, Q&A-24).

The letter also advises that the account holder should contact the custodian to obtain a corrected Form 5948-SA. As a reference, while taxpayers should keep a copy of Form 5498-SA, Form W-2 also shows HSA contributions. It also states that HSAs may be governed by ERISA and that the account holder may contact the DOL for information about applicable fiduciary responsibilities.

The second letter (2021-0014) responds to an inquiry about the benefits that can be provided by an HDHP before the minimum annual deductible is satisfied as well as the interaction of copay accumulator rules with the HDHP requirements. The letter reminds that an individual covered by an HDHP who also has a discount card, rebate or coupon for healthcare services or products, may still contribute to an HSA provided that the individual is required to pay the costs of the covered healthcare until the minimum annual deductible for the HDHP is satisfied. As an example, the letter states that if a manufacturer’s discount (including a rebate or coupon) reduces a drug’s cost from $1,000 to $600, the amount that may be credited toward satisfying the HDHP deductible is $600, not $1,000. (Reference: IRS Notice 2004-50, Q&A-9).

The letter also reiterates that HDHPs may not provide benefits other than for preventive care until the minimum deductible for that year is satisfied. The eligible “preventive” care is determined under Section 223, and state-law mandates do not change the outcome. For example, some states mandate male contraception and sterilization services. However, the letter affirms the previous guidance that state mandated benefits that are not included in Section 223 is not considered preventive for the purpose of an HDHP. (Reference: IRS Notice 2018-12).

Though these information letters provide helpful reminders of the existing rules, they do not outline the comprehensive guidance. The readers are recommended to verify any specific situation with the IRS Notices referenced in this section or consult with the legal or tax advisor.

IRS Letter 2021-0008 »
IRS Notice 2021-0014 »

IRS Reminds Taxpayers that COVID-19 Testing and PPE are Reimbursable under FSAs, HRAs and HSAs

On September 10, 2021, the IRS issued News Release 2021-181, which reminds taxpayers that the cost of COVID-19 home testing kits is a qualified medical expense and therefore eligible for reimbursement through a health FSA, HRA or HSA. A qualified medical expense is an expense related to the diagnosis, prevention or treatment of a health condition. Thus, the cost associated with the diagnosis of COVID-19 is a qualified medical expense.

Additionally, the cost of personal protective equipment (PPE), such as masks, hand sanitizer and sanitizing wipes used for the primary purpose of preventing the spread of COVID-19 is also a qualified medical expense eligible for reimbursement under a health FSA, HRA or HSA.

Employers and service providers that administer these plans should keep this guidance in mind when providing reimbursements.

News Release 2021-181 »

IRS Regulations Recapture Excess Employment Tax Credits under ARPA

On September 10, 2021, the Treasury Department released temporary regulations related to tax credits under the American Rescue Plan Act’s (ARPA’s) paid sick and family leave and employee retention provisions under the CARES Act. The rules are effective immediately but are applicable to all paid sick and family leave monies credited or refunded on or after April 1, 2021; and employee retention monies credited or refunded on or after July 1, 2021.

The guidance is technical in nature. Employers should carefully review with their accountants and tax specialists to understand the guidance and its impact on their assessed taxes.

An employer may not receive the employee retention credit for the same wages for which the employee receives the paid sick and family leave credit. For second quarter 2021, if an eligible employer receives the employee retention credit based on wages paid that are also qualified leave wages on which the employer may claim the paid sick and family leave credits, the employer must reduce any paid sick and family leave credits by the amount of the credit allowed under the CARES Act. For the third and fourth calendar quarters of 2021, any qualified leave wages eligible employers take into account for purposes of the paid sick and family leave credits may not be taken into account for purposes of the employee retention credit.

The paid sick and family leave credits are also reduced by the amount of the credit allowed under Section 41 (the credit for increasing research activities). In addition, any wages taken into account in determining paid sick and family leave credits cannot be taken into account as wages for purposes of the credits under Sections 45A (Indian Employment Credit), 45P (Employer Wage Credit for employees who are active-duty service members), and 45S (Paid Family and Medical Leave Credit).

Some employers received an advanced payment of the paid sick and family leave credit. Other employers received a refund if the amount of the credits exceeds their taxes for the quarter.

The new guidance provides that any credits claimed that exceeded the amount to which the employer was entitled and that were actually credited or refunded by the IRS are considered to be erroneous refunds. The IRS will collect these erroneous payments in the normal course of processing employment tax returns by treating the amounts as owed taxes (underpayment of taxes).

Recapture of Excess Employment Tax Credits Under the American Relief Plan Act of 2021 »

Retirement Update

IRS Updates Opinion Letter Procedures for Pre-approved § 403(b) Plans

On September 1, 2021, the IRS released Rev. Proc. 2021-37, which modifies the opinion letter procedures for pre-approved § 403(b) plans to be more consistent with the procedures applicable to pre-approved qualified § 401(a) plans. The guidance also addresses the deadlines for plan amendments to comply with § 403(b) requirements.

An opinion letter is a written statement issued by the IRS that indicates whether the form of a plan document satisfies the applicable Code requirements. The opinion letter process requires the plan document to be submitted to the IRS within certain prescribed timeframes or cycles. Previous guidance, including Rev. Proc. 2013-22, outlined the submission process for the initial or Cycle 1 pre-approved § 403(b) plan opinion letters. Rev. Proc. 2021-37 describes the submission process for Cycle 2 opinion letters.

The updates under Rev. Proc. 2021-37 include the elimination of the distinction between prototype and volume submitter plans. Essentially, these plans will now be covered by one program for standardized and non-standardized documents. The document format can be either a single document or an adoption agreement plan.

An employer who amends a non-standardized plan document could potentially lose reliance upon an issued opinion letter. However, the procedures allow such an employer to file Form 5307 to request an individual determination letter for the plan.

The IRS intends to issue a cumulative list of changes that identifies the requirements that the IRS will take into account in reviewing § 403(b) pre-approved plans submitted for Cycle 2. This list will be provided prior to the beginning of the Cycle 2 on-cycle submission period, which will run from May 2, 2022, to May 1, 2023.

Rev. Proc. 2021-37 extends the deadline for making interim amendments with respect to a change in
§ 403(b) requirements, for most plans, until the end of the second calendar year following the calendar year in which the change is effective. The procedure also addresses the limited extension of the Cycle 1 remedial amendment period, which otherwise ended on June 30, 2020.

Additionally, the procedure provides rules for allowing employees of church-related organizations to participate in a 403(b) approved plan intended to be a retirement income account, and guidance regarding the corresponding required amendments.

Sponsors of 403(b) retirement plans should be aware of the updated opinion letter procedures and consult with their counsel and document providers for further information. The IRS invites comments regarding Rev. Proc. 2021-37, which can be submitted in accordance with the instructions provided therein.

Revenue Procedure 2021-37 »

Announcements

Reminder: It’s MLR Rebate Time Again!

The ACA requires insurers to submit an annual report to HHS accounting for plan costs. If the insurer does not meet the medical loss ratio standards, they must provide rebates to policyholders. Rebates must be distributed to employer plan sponsors between August 1, 2021, and September 30, 2021. Employers should keep in mind that if they receive a rebate, there are strict guidelines as to how the rebate may be used or distributed.

For more information, download Medical Loss Ratio Rebates: A Guide for Employers or Medical Loss Ratio: PPACA’s Rules on Rebates.

Reminder: COBRA Subsidy Period Ends on September 30, 2021

The American Rescue Plan Act (ARPA) COBRA premium assistance period runs from April 1, 2021, to September 30, 2021. The statute requires that plans provide a notice of expiration of the ARPA premium assistance (and available coverage options at that point) to all individuals who are receiving premium assistance during this time. The notice states that plans and issuers are required to provide individuals with a notice of expiration of periods of premium assistance explaining that the premium assistance for the individual will expire soon, the date of the expiration and that the individual may be eligible for coverage without any premium assistance through COBRA continuation coverage or coverage under a group health plan. Coverage may also be available through Medicaid or the Health Insurance Marketplace.

This notice must be provided 15 – 45 days before the individual’s premium assistance expires, so employers should be mindful of this requirement.

Distribution of the premium assistance notice of expiration is included in PPI's ARPA Subsidy Administration Service. COBRA clients who elected the Service can download the ARPA Update: Subsidy Ending September 30, for more information.

Model Notice of Expiration of Premium Assistance »

Reminder: Calendar Year SAR Must Be Distributed by September 30, 2021

Plans that are subject to ERISA and Form 5500 filing must distribute the Summary Annual Report (SAR) to participants within nine months of the end of the plan year; thus, a calendar year plan is generally required to distribute the SAR for the 2020 plan year by September 30, 2021. If the plan applied for an extension to the Form 5500 filing, the SAR is then due within two months following that filing.

The SAR is a summary of the plan’s information reported on the Form 5500. If a plan is not subject to Form 5500 filing, then it is exempt from the SAR notice requirement — this would include church plans, governmental plans, and unfunded or insured plans with fewer than 100 participants. Also, large, unfunded self-insured plans are exempt from the SAR requirement even though they are subject to the Form 5500 filing requirement.

Model language is available for SAR preparation.

For more information on how ERISA applies to PPI clients, download the Whitepaper "ERISA as it Applies to PPI Clients"

FAQ

FAQ: What is a MERP, and what are the compliance obligations associated with one?

A medical expense reimbursement plan, or MERP, is a type of HRA meant to assist employees with their medical expenses. While specially named, for all compliance-related purposes, a MERP functions and should be treated like an HRA. Specifically, a MERP (like an HRA) is a 100% employer-funded account that reimburses employees (and their spouses/dependents) for incurred medical expenses on a tax-advantaged basis (the MERP reimbursements are not included in the gross income of the employees). There are no employee pre-tax contributions towards MERPs, so there are no related Section 125 compliance issues. Employers sometimes offer MERPs alongside a medical plan or to a specific group of employees.

Generally, compliance issues posed by a MERP will depend on the structure of the MERP itself, including the group of employees eligible for the MERP, the types of expenses that qualify for reimbursement, the maximum reimbursement amount, and the types of plans it is coupled with (including an HDHP/HSA plan). Below are a few of the compliance considerations when offering a MERP.

First, the Section 105 nondiscrimination rules apply directly to self-insured plans, and MERPs are considered a type of self-insured plan. Generally, the nondiscrimination rules prohibit plan designs from favoring highly compensated individuals (HCIs, defined very generally as the top-25% of all employees with respect to compensation, although it also includes a top-five-paid officer and a more-than-10% shareholder/owner). If a MERP is offered to a classification of employees that consists primarily of HCIs, the MERP would likely be viewed as favoring HCIs. The general consequence is that the HCIs would lose the tax benefits associated with the plan (the reimbursements, or a portion thereof, would become taxable to the HCI). So, if the MERP is offered only to a group of executives or managers (which is a common MERP design), then it is likely to have trouble with the nondiscrimination rules.

Second, if the MERP is offered alongside an HDHP/HSA plan, then the MERP will likely cause employees in those plans to lose HSA eligibility. This is because a MERP is generally considered “first dollar” (impermissible) coverage, since it is reimbursing coverage under the statutory minimum deductible for HSA-qualifying HDHP plans. So, employers should consider offering a MERP alongside a non-HDHP plan so that there's no HSA issue, and then make it available to anyone that enrolls in that non-HDHP plan so that there's no nondiscrimination issue. Another possibility is to offer a MERP in lieu of the HSA option, as the primary way to assist employees with the cost-shifting burden of a low deductible.

A third issue is the ACA. The ACA’s employer mandate requires an offer of coverage to any employee working 30 hours or more per week, and a MERP will not generally constitute an offer of coverage. So, a stand-alone MERP offering (in lieu of major coverage) may not meet the employer mandate offer requirement. Further, the ACA requires HRAs to be integrated with a group health plan — so the MERP should be offered alongside an employer plan (integrated) anyway. If it is not integrated, then the MERP on its own (considered a group health plan subject to ACA) would violate at least two of the ACA's requirements: coverage of preventive services without cost-sharing and prohibition on annual dollar limits for essential health benefits. So, the MERP should be offered alongside the employer's major medical plan rather than as a stand-alone MERP, as a way to avoid these ACA issues.

Lastly, a MERP would generally be considered a group health plan, and that means it must comply with ERISA, COBRA, and other benefit laws and regulations. The best approach is to build the MERP in as a component benefit of the group health plan itself. If it is integrated, then the plan as a whole (bundled together) will satisfy ERISA, COBRA and other compliance requirements. If it's offered on its own, the MERP would have to meet those requirements independently (e.g., the MERP must have its own plan docs). In addition, wherever the MERP benefits are described, it is important to clearly outline eligibility, MERP reimbursement limits, and the types of medical expenses that could potentially be reimbursed. Some MERPs limit the types of expenses to dental and vision only, which would create a limited purpose type of HRA, and that could eliminate the HSA and some ACA issues above. Regardless, a clear description and communication of MERP benefits will help employees clearly understand what they are getting with the MERP.

State Updates

Alabama

September 14, 2021

Bulletin Reminds of HIV PrEP Coverage Requirements

On September 1, 2021, the Department of Insurance issued Bulletin No. 2021-09 to alert carriers to recent federal guidance regarding coverage requirements for HIV Pre-exposure Prophylaxis (PrEP) without cost-sharing. The bulletin was directed at carriers writing insurance in the state.

The US Preventive Services Task Force made recommendations regarding coverage of PrEP as preventive services to decrease the risk of HIV transmission for persons who are at high risk of HIV infection. The recommendation encompasses not only the drug itself, but also the ancillary tests and services to begin and maintain a PrEP prescription. These baseline and monitoring services include HIV testing, hepatitis B and C testing, creatinine testing and calculated estimated creatine clearance or glomerular filtration rate, pregnancy testing, sexually transmitted infection screening and counseling and adherence counseling.

Accordingly, the bulletin recommends that carriers update their websites to reflect the scope of the PrEP coverage provided as preventive services without cost-sharing. Carriers are also advised to provide enrollees with information clarifying the coverage and to provide a copy of the communication to the department.

The bulletin notes that federal regulators have given insurers until September 19, 2021 to provide this coverage and that the department will adhere to this implementation date.

Although the guidance is directed at insurers, employers that sponsor group health plans may also want to be aware of these preventive service coverage requirements.

Bulletin No. 2021-09 »

Illinois

September 14, 2021

Coverage Mandates for Colonoscopies Expanded

On August 20, 2021, H.B. 2653 was passed, amending the Illinois Insurance Code to require group health plans to provide coverage without cost-sharing for colonoscopies that are follow-up exams based on an initial screen where the colonoscopy was determined to be medically necessary. The new law applies to group health plans that are issued or renewed on or after January 1, 2022.

Further, the bill states that a group health plan shall not impose a deductible, coinsurance, copayment or any other cost-sharing on colonoscopy coverage, unless such coverage would disqualify a HDHP from eligibility for an HSA.

Employers should be aware of these developments and confirm with carriers (as applicable) that colonoscopies are covered without cost-share in the circumstances as described above.

House Bill 2653 »

Behavioral Health Coverage Mandates

On August 25, 2021, H.B. 2595 was passed, amending the Illinois Insurance Code to require insurers issuing or renewing group health plans (among other plans) in the state to provide coverage for medically necessary treatment of mental, emotional, nervous or substance use disorders or conditions. The new law applies to group health plans that are issued or renewed on or after January 1, 2022.

The law further provides that an insurer shall base any medical necessity determination or the utilization review criteria on current generally accepted standards of mental, emotional, nervous or substance use disorder or condition care, among other items. In addition, the law explains that for each violation, a civil penalty between $5,000 and $20,000 may be accessed in certain circumstances.

Employers should be aware of these developments and confirm with carriers (as applicable) that behavioral health coverage requirements comply with this new law effective January 1, 2022.

House Bill 2595 »

Certain Individuals Required to Obtain COVID-19 Vaccine

On August 26, 2021, Gov. Pritzker issued Executive Order 2021-20 (COVID-19 Executive Order No. 87), requiring all healthcare workers, all pre-K – 12 teachers and staff, and higher education personnel and students to receive the COVID-19 vaccine.

Individuals described above must obtain the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine within 10 days after the order was issued (I.e., by September 5, 2021) and be fully vaccinated against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series. If unable or unwilling to receive the vaccine, such individuals will be required to get tested for COVID-19 at least once per week.

In addition, the order requires certain state employees, contractors and vendors at state-owned or state-operated congregate facilities to be vaccinated by October 4, 2021 (subject to bargaining for employees).

Executive Order 2021-20 »
Press release »

Indiana

September 14, 2021

Waiver of Clinical Information Requirements Continued

On September 1, 2021, the Department of Insurance issued Bulletin 260 continuing the waiver of clinical information requirements for prior authorization during the COVID-19 public health emergency.

The bulletin explains that the department strongly encourages insurers to waive the clinical information requirements for prior authorizations when doing so will expedite the transfer of patients to the most appropriate setting through September 30, 2021. The intent is to increase the number of hospital beds and staff available to assist COVID-19 capabilities.

While the bulletin applies to insurers, employers should be aware of these developments.

Bulletin 260 »

Extension of Prior Authorization Timeframes

On September 1, 2021, the Department of Insurance issued Bulletin 261 extending certain prior authorization timeframes in light of the ongoing public health crisis due to COVID-19.

The bulletin explains that the department strongly encourages insurers to extend prior authorization timeframes of approved authorizations for 180 days from the expiration of the prior authorization of non-emergent procedures postponed to assist COVID-19 capabilities.

While the bulletin applies to insurers, employers should be aware of these developments.

Bulletin 261 »

Massachusetts

September 14, 2021

COVID Guidance Following End of State of Emergency

On August 31, 2021, Commissioner Anderson issued Bulletin 2021-08. The bulletin provides guidance to insurers on COVID-19 testing, treatment and vaccines. The state of emergency issued by Gov. Baker on March 10, 2020, ended as of June 15, 2021. However, on May 28, 2021 the state issued a declaration of a public health emergency due to the continuing threat of COVID-19. This bulletin clarifies the Division of Insurance’s expectations of insurance carriers since the risk of COVID-19 has not been eliminated.

The bulletin indicates that carriers must continue to cover COVID-19 testing without cost-sharing or utilization management for symptomatic individuals, people identified as close contacts of someone with COVID-19, and asymptomatic individuals as long as the individual qualifies under criteria established by the state’s Secretary of Health and Human Services, the Department of Public Health or the federal government. Specifically, polymerase chain reaction (PCR) tests and antigen tests must be covered.

The bulletin also reminds carriers that they are expected to provide coverage for all emergency, inpatient services, outpatient services and cognitive rehabilitation services related to COVID-19 without the use of a prior authorization process. Additionally, carriers should cover all claims where COVID-19 is listed as a diagnosis without cost-sharing.

Carriers are also expected to provide coverage for all COVID-19 vaccines without cost-sharing or utilization management. While carriers are expected to cover services that may be related to reactions to the COVID-19 vaccine, they can apply cost-sharing since those services are not considered related to the treatment of COVID-19.

The division also expects carriers that are acting as administrators for employer-sponsored self-insured plans to take steps that are consistent with the bulletin’s provisions. Both employers of fully insured and self-insured health plans should be aware of this guidance.

Bulletin 2021-08 »

HIV PrEP Coverage

On September 7, 2021, Commissioner Anderson released Bulletin 2021-09, indicating that that the Division of Insurance expects carriers to comply with federal guidance requiring coverage of HIV pre-exposure prophylaxis (PreP) as a preventive health service. On July 19, 2021, the US Preventive Services Task Force issued guidance indicating that HIV PrEP must be offered without cost-sharing as a preventive service.

The division expects that carriers will come into compliance with the federal requirement to offer this drug without cost-sharing by no later than 60 days from the date of the July 19, 2021, US Preventative Services Task Force guidance. Employers should be aware of this requirement.

Bulletin 2021-09 »

Continued Access to Telehealth Services in 2021

On September 7, 2021, Commissioner Anderson released Bulletin 2021-10, supplementing and superseding the provisions of Bulletin 2020-04 (“Managed Care Practices and Continued Access to Telehealth Services”). The bulletin outlines the Division of Insurance’s expectations regarding continued access to telehealth services.

Considering the ongoing impacts of the COVID-19 virus, carriers are expected to provide clear communication materials to in-network providers to explain how to submit claims for reimbursement of telehealth benefits. As was noted in Bulletin 2020-04, carriers may also reimburse providers for services delivered via telehealth at the rate of reimbursement defined by Chapter 260. Carriers who wish to alter telehealth rates must file implementation plans with the division. The division also expects carriers to develop comprehensive disclosure materials for consumers, to be communicated in the fall of 2021.

This guidance is for insurance carriers, but plan sponsors should familiarize themselves with this guidance on telehealth services.

Bulletin 2021-10 »

Prohibited Discrimination on the Basis of Gender Identity or Gender Dysphoria

On September 9, 2021, Commissioner Anderson released Bulletin 2021-11 to clarify the continuing applicability of Massachusetts law prohibiting discrimination on the basis of gender identity or gender dysphoria. The bulletin clarifies discriminatory practices prohibited in Massachusetts in light of changes to state law since the last bulletin addressed this subject (Bulletin 2014-03).

In 2018, Massachusetts amended its public accommodations law to include gender identity as a protected class and, in 2020, the state added specific discrimination protections regarding disability insurance. The Massachusetts Commission Against Discrimination also released guidance affirming that places of public accommodation include businesses that provide services, such as insurance companies.

In keeping with these amendments, the division uses this bulletin to remind carriers that they may not deny or categorically exclude medically necessary treatment based on an individual’s gender identity or gender dysphoria. In determining their obligations, carriers are expected to consult the most up-to-date medical standards set forth by nationally recognized medical experts in the transgender health field. Additionally, carriers must not single out a treatment or procedure for exclusion of coverage because it is associated with transgender people or gender dysphoria. They also may not impose stricter requirements for coverage for a service when used to treat or ameliorate symptoms of gender dysphoria than when used to treat other conditions. Carriers must also comply with applicable mental health requirements.

Bulletin 2021-11 »

New Jersey

September 14, 2021

Early Prescription Drug Refills and Waiver of 90-Day Supply Limits Due to Tropical Storm Ida

On September 10, 2021 Commissioner Caride issued Bulletin No. 21-10 as a response to Tropical Storm Ida and the state of emergency declared by Gov. Murphy on September 1, 2021. The bulletin requires carriers to provide coverage of prescription drug refills even when the covered person has not yet reached the scheduled refill date. They must also permit coverage prescription drugs in excess of a 90-day supply. There must also be coverage through early refills and relaxed quantity limits with respect to lost or destroyed medications.

The Department of Banking and Insurance expects carriers to comply with and communicate the provisions of this bulletin to covered persons. Employers with New Jersey plans should be aware of this guidance.

Bulletin No. 21-10 »

Rhode-Island

September 14, 2021

Healthcare Workers and Providers Required to Obtain COVID-19 Vaccine

Effective August 17, 2021, a new regulation requires all healthcare workers and healthcare providers to be vaccinated against COVID-19 by October 1, 2021, in order to protect vulnerable populations.

The regulation provides that the only exemption from this requirement is a medical exemption evaluated by a licensed physician, physician assistant or advance practice registered nurse. Until October 1, 2021, all healthcare workers and providers who are not vaccinated are required to be tested at least twice per week via any COVID19 test authorized by the FDA.

The Department of Health also issued an FAQ providing clarifying guidance on this requirement. The regulation is effective through December 14, 2021.

216-RICR-20-15-8 »
Vaccination Requirement FAQ »

South Carolina

September 14, 2021

Bulletin Announces Annual Adjustment for Maximum Behavioral Therapy Benefit

On August 31, 2021, the Department of Insurance issued Bulletin No. 2021-07 to announce the indexed increase in the annual maximum benefit for behavioral therapy coverage. The bulletin was directed at HMOs and carriers writing insurance in the state.

State law requires that an annual adjustment of the maximum benefit for behavioral therapy coverage be made to reflect any change from the previous year in the Consumer Price Index. Accordingly, the department determined that the maximum benefit for coverage for behavioral therapy shall be increased to $62,100 for the calendar year beginning January 1, 2022.

Although the guidance is directed at insurers, employers that sponsor group health plans may also want to be aware of this announcement.

Bulletin No. 2021-07 »

Washington

September 14, 2021

Extension of Emergency Orders on COVID-19 Testing and Surprise Billing

On September 3, 2021, Commissioner Kreidler issued orders further extending emergency orders 20-01 and 20-06. Emergency Order 20-01, which has been extended through October 3, 2021, requires health insurers to waive copays and deductibles for COVID-19 testing. The order also requires insurers to allow a one-time early refill for prescription drugs.

Emergency Order 20-06, which has also been extended through October 3, 2021, protects consumers from receiving surprise bills for lab fees related to COVID-19 diagnostic testing. The order also encourages insurers to report out-of-network labs that are not publishing or honoring the cash price of COVID-19 diagnostic testing.

These orders apply to insurers, but provide employers with information about the continued coverage of COVID-19 testing.

Further Extending Emergency Order 20-01 »
Further Extending Emergency Order 20-06 »

This material was created by PPI Benefit Solutions to provide accurate and reliable information on the subjects covered but should not be regarded as a complete analysis of these subjects. It is not intended to provide specific legal, tax or other professional advice. The service of an appropriate professional should be sought regarding your individual situation. PPI does not offer tax or legal advice. "PPI^®" is a service mark of Professional Pensions, Inc., a subsidiary of NFP Corp. (NFP). All rights reserved.

PPI in the News Compliance Corner - September 16, 2021 Archive
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COVID-19 Updates

Biden Administration Mandates Vaccination or Testing for Most Employees

Federal Updates

IRS Provides Guidance on Reporting Qualified Sick and Family Leave Wages

IRS Publishes the ACA’s Affordability Percentage and Individual’s Premium Tax Credit Table for 2022

IRS Releases Two Letters Concerning HSAs and HDHPs

IRS Reminds Taxpayers that COVID-19 Testing and PPE are Reimbursable under FSAs, HRAs and HSAs

IRS Regulations Recapture Excess Employment Tax Credits under ARPA

Retirement Update

IRS Updates Opinion Letter Procedures for Pre-approved § 403(b) Plans

Announcements

Reminder: It’s MLR Rebate Time Again!

Reminder: COBRA Subsidy Period Ends on September 30, 2021

Reminder: Calendar Year SAR Must Be Distributed by September 30, 2021

FAQ

FAQ: What is a MERP, and what are the compliance obligations associated with one?

State Updates

Alabama

September 14, 2021

Illinois

September 14, 2021

Indiana

September 14, 2021

Massachusetts

September 14, 2021

New Jersey

September 14, 2021

Rhode-Island

September 14, 2021

South Carolina

September 14, 2021

Washington

September 14, 2021

FAQ

Compliance Corner Archive

PPI in the News Compliance Corner - September 16, 2021 Archive You are here: Home / PPI in the News / Compliance Corner - September 16, 2021 Archive

COVID-19 Updates

Biden Administration Mandates Vaccination or Testing for Most Employees

Federal Updates

IRS Provides Guidance on Reporting Qualified Sick and Family Leave Wages

IRS Publishes the ACA’s Affordability Percentage and Individual’s Premium Tax Credit Table for 2022

IRS Releases Two Letters Concerning HSAs and HDHPs

IRS Reminds Taxpayers that COVID-19 Testing and PPE are Reimbursable under FSAs, HRAs and HSAs

IRS Regulations Recapture Excess Employment Tax Credits under ARPA

Retirement Update

IRS Updates Opinion Letter Procedures for Pre-approved § 403(b) Plans

Announcements

Reminder: It’s MLR Rebate Time Again!

Reminder: COBRA Subsidy Period Ends on September 30, 2021

Reminder: Calendar Year SAR Must Be Distributed by September 30, 2021

FAQ

FAQ: What is a MERP, and what are the compliance obligations associated with one?

State Updates

Alabama

September 14, 2021

Illinois

September 14, 2021

Indiana

September 14, 2021

Massachusetts

September 14, 2021

New Jersey

September 14, 2021

Rhode-Island

September 14, 2021

South Carolina

September 14, 2021

Washington

September 14, 2021

FAQ

Compliance Corner Archive

PPI in the News Compliance Corner - September 16, 2021 Archive
You are here: Home / PPI in the News / Compliance Corner - September 16, 2021 Archive