COVID-19 Health Emergency Order Extends No-Cost Coverage of Tests and Vaccines
Employer plans should continue meeting all emergency-order requirements
The Biden administration on Oct. 13 extended the COVID-19 public health emergency for an additional 90 days, keeping emergency measures in place through Jan. 11. The public health emergency was first declared in January 2020 and has been renewed every 90 days since, but some policy analysts thought the administration might allow the emergency declaration to lapse after President Joe Biden said “the pandemic is over” in a September interview with CBS’s “60 Minutes.”
Secretary of Health and Human Services (HHS) Xavier Becerra said he extended the health emergency “after consultation with public health officials as necessary.”
The HHS secretary could terminate the public health emergency earlier than Jan. 11 or extend it again. Before the public health emergency expires, HHS has said it will give at least a 60-day notice.
Employer Coverage Implications
“This public health emergency declaration is important to group health plan sponsors because it determines the period during which group health plans and insurers must pay for COVID-19 tests (including certain over-the-counter tests) and related services without charging cost-sharing,” according to a compliance alert by HR consultancy Segal.
Segal noted that nongrandfathered group health plans and insurers also must cover COVID-19 vaccines without cost-sharing both in and out of network. After the public health emergency expires, nongrandfathered plans may limit COVID-19 vaccine coverage to in-network providers.
The coverage requirements apply to payment through both medical plans and pharmacy benefits.
Self-insured employers should ensure that their health and pharmacy coverage meets all emergency-order requirements by conferring with their plans’ third-party administrators. Fully insured employers should check that their insurance carriers are compliant with all current no-cost-sharing requirements.
Reimbursement Rate for Out-of-Network Providers
As long as the public health emergency is in place, when preventive services such as COVID-19 tests and vaccines are delivered by an out-of-network health care provider, employer plans must reimburse the provider a “reasonable amount,” as determined in comparison to prevailing market rates for such services, Segal advised. Federal agencies have said they will consider the Medicare payment rates to be reasonable.
Costs Shifting to Employers
HHS announced on Aug. 30 that if Congress does not authorize additional funding, then “as early as January 2023, the administration anticipates no longer having federal funds to purchase or distribute vaccines.” As a result, the government will transition vaccine payments to private health plans and insurers, similar to the treatment of seasonal flu or other vaccines, Segal reported.
Similarly, HHS said it expects to transition payment for oral antiviral COVID-19 medications, such as Paxlovid, to plans and insurers in mid-2023.
“Consequently, group health plan sponsors that cover COVID-19 vaccines and medications may see costs increase as the federal government transitions away from paying” these expenses, Segal said.
Other health plan requirements, most notably the requirement to extend certain deadlines related to COBRA, special enrollment, and claims and appeals, “are pegged to a different COVID-19 emergency declaration—the national emergency” that was declared in March 2020, Segal explained.
Earlier this year, Biden again extended the COVID-19 national emergency, which was set to expire on March 1, 2022.
Keeping the national emergency in place, the attorneys said, means that the extended deadlines listed below were continued through February 2023 (or, if earlier, 60 days from the end of the national emergency):
FOR PLAN PARTICIPANTS:
COBRA qualifying event and disability extension notices. The 60-day deadline by which qualified beneficiaries must notify the plan of certain qualifying events (e.g., divorce or legal separation, a dependent child ceasing to be a dependent under the terms of the plan) or disability determination.
COBRA election. The extended 60-day deadline to elect COBRA continuation coverage.
COBRA premium payments. The 45-day (for the initial payment) and 30-day (for subsequent payments) deadlines to timely pay COBRA premiums.
HIPAA special enrollment period. The 30-day deadline (in some instances, 60-day) to request enrollment in a group health plan following a special enrollment event (i.e., birth, adoption or placement for adoption of a child, marriage, loss of other health coverage, or eligibility for a state premium assistance subsidy).
Benefit claims and appeals. The deadline under the plan by which participants may file a claim for benefits (under the terms of the plan) and the deadline for appealing an adverse benefit determination.
External review. The four-month period (for the federal external review process; this period could be different for a state external review process) for a claimant to file a request for external review.
Perfecting a request for external review. The four-month period (or 48-hour period following receipt of an incomplete request notification, if later) for a claimant to perfect an incomplete request for external review.
FOR PLAN ADMINISTRATORS:
COBRA election notice. The 14-day deadline (44 days where the employer is the plan administrator) for a plan administrator to provide a COBRA election notice to qualified beneficiaries.
American Rescue Plan Act Employment-related Provisions
President Joe Biden signed the American Rescue Plan Act of 2021 (ARPA) into law on March 11, 2021. The law generally provides financial relief for individuals, state and local governments, schools, businesses and for other purposes.
In addition, the law contains the following measures of special interest to employers and their employees:
A subsidy for COBRA premiums, funded through employer tax credits
Extension of employer tax credits for FFCRA employee leave voluntarily provided through Sept. 30, 2021
Expansion of employee earnings eligible for the FFCRA tax credit
Inclusion of testing and immunization as reasons for FFCRA leave
Extension of $300 increase in weekly unemployment benefits
Extension of weekly unemployment benefits for workers who otherwise wouldn’t qualify for these benefits
Expansion of subsidy for ACA premiums
Increase in DCAP contribution limits
Extension and expansion of the employee retention tax credit
Employers should review the ARPA’s provisions to identify any requirements and opportunities that apply to them. Employers should also watch for official guidance on the implementation of the law.
NEW YORK ALMOST READY TO ADOPT HEALTH & ESSENTIAL RIGHTS ACT (HERO)
NY State is near ready to adopt enforceable legislation protecting employees under the HERO Act. This is in addition to the March 12th law allowing up to a maximum of 4 hours of PAID time off for COVID19 vaccinations/iinjections (8 hours for 2 vaccines) for employees only. This time off is not intended for family member vaccinations.
As an employer:
– you may require proof
– you cannot require employees provide advanced noticeSome States and Cities have their own act regarding vaccinations. In Philadelphia, all employers with 50+ employees must allow for vaccinations and recovery.
If enacted, the HERO Act would require the New York Department of Labor (“NYDOL”) to issue enforceable minimum workplace health and safety standards, and would also impose significant new health and safety obligations on employers in the state. Because Governor Cuomo is expected to sign the bill into law, New York employers should be aware of the HERO Act’s implications and take necessary steps to prepare for compliance.
In additiona, California is considering allowing employees to cover dependent adults on employer sponsored plan coverage. Dependent Adults must be living in the US and considered dependent under IRS rules. Stay tuned to see if this has any movement forward.
The Current State of Consumer Driven Health Plans
Health care consumerism has always been about empowering individuals to select more cost-effective, appropriate care. This thesis is the backbone of consumer driven health plans (CDHPs), which aim to make employees active participants in their health care.
A CDHP is simply the combination of a high deductible health plan (HDHP) and a health care account. Since HDHPs have low premiums but high deductibles (i.e., employees must cover a significant portion of incurred health costs), health care accounts are often used to offset these expenses.
CDHPs can be an excellent way for employers to control health care spending, too. In fact, CDHPs are often more effective than traditional health plans at reducing total medical costs. For example, short-term cost savings increased by 20% for employers during their first year of switching to a CDHP, according to a Cigna report. That’s because CDHPs share much of their costs with employees, rather than relying primarily on the employer. Even employers that contribute to employee health accounts can choose how much to do so, providing even more spending control.
Beyond monetary advantages, CDHPs also help improve employee satisfaction with their health coverage. Reach out today to learn more about how CDHPs can benefit your organization.
Washington, D.C. – Matt Eyles, president and CEO of America’s Health Insurance Plans (AHIP), issued this statement following President Biden’s Executive Order designed to ensure that more Americans can obtain coverage as the nation continues to work to overcome the COVID-19 crisis:
Every American deserves access to affordable, comprehensive health coverage and high-quality care. We applaud President Biden for his swift actions to create more pathways for Americans to obtain coverage that is so essential to their health, well-being and peace of mind.
We applaud the call for a targeted special enrollment period that is accompanied by robust consumer outreach and education, which will provide an additional opportunity for hardworking Americans to obtain comprehensive coverage for themselves and their families. We also support the elimination of barriers for low-income adults to obtain Medicaid coverage, which is particularly essential in the midst of a pandemic.
From the start of the COVID-19 crisis, health insurance providers have taken decisive action. Working together with federal, state, and local leaders and our private-sector partners, we are committed to strengthening coverage and ensuring that costs are not a barrier to care for the virus. Health insurance providers stand ready to implement the guidance that will follow this executive order.
As the national economy reopens, an unprecedented number of workers will be required to wear faces masks in the workplace for the first time.
To help employers provide a safer work environment, the Occupational Safety and Health Administration (OSHA) has published a series of answers to frequently asked questions (FAQs) regarding the use of masks in the workplace. The new guidance outlines the differences between cloth face coverings, surgical masks and respirators.
Among other things, the FAQs explain that:
Cloth face coverings are not considered personal protective equipment and employers are not required to provide them;
OSHA generally recommends that employers encourage workers to wear face coverings at work;
Cloth face coverings are not a substitute for social distancing measures;
OSHA suggests following CDC recommendations, and always washing or discarding cloth face coverings that are visibly soiled; and
Employers must not use surgical masks or cloth face coverings when respirators are needed.
When: On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act (PPPFA) into law. These amendments are effective as if included in the CARES Act.
What: The PPPFA modifies provisions related to the forgiveness of loans made to small businesses under the Paycheck Protection Program (PPP) implemented in response to COVID-19. The following summarizes how the PPPFA changes the PPP.
The PPPFA reduces the amount of loan needed for payroll from 75% to 60%.
The PPPFA requires only 60% of forgivable expenses be used towards payroll costs, as opposed to 75%. Meaning, the percentage of loan proceeds that must be spent on payroll costs is now reduced allowing borrowers to spend more on overhead and fixed costs such as rent and utilities.
This does not technically change the requirement under the Small Business Administration’s (SBA) First Interim Final Rule that at least 75% of the loan be used for payroll costs, but it seems likely the SBA will issue new guidance to conform its guidelines to this legislation.
The PPPFA extends time period to use loan proceeds from eight weeks to 24 weeks.
Borrowers can now decide whether to retain its current eight weeks covered period or switch to a 24-week covered period. The flexibility to spend the PPP funds over the course of the remainder of the year increases the likelihood of satisfying the criteria for loan forgiveness.
Extending the time period to use loan proceeds does not permit the SBA to continue accepting applications; the PPP application deadline remains June 30, 2020.
The PPPFA prolongs the rehire date deadline from June 30 to December 31, 2020.
Borrowers must restore FTEs and certain salaries to February 15 levels on or before December 31, 2020, extended from June 30th.
The PPPFA eases rehire requirements based on employee availability and social distancing/safety requirements.
In order to avoid a reduction in forgiveness, borrowers that could prove an attempt to rehire an employee who reject the offer will be disregarded.
PPPFA adds additional exceptions for a reduced head count should the borrower be able to document the inability to find qualified employees for unfilled positions on or before December 31, 2020, and when the borrower cannot restore business operations to February 15 levels because it is unable to comply with federal requirements or guidance related to COVID-19 (e.g., social distancing, sanitation requirements or customer safety needs).
The PPPFA extends the repayment period from two years to five years.
PPPFA eases repayment terms in the event loans or portions of them are not forgiven. Borrowers now will have a minimum of five years instead of two years. The interest rate remains one percent. Also, the first payment will be deferred for six months after the SBA makes a determination on forgiveness.
The PPPFA repealed the provision of the CARES Act that barred PPP forgiveness recipients from deferring employer payroll taxes.
The PPPFA allows borrowers to take advantage of the CARES Act provision allowing deferment of the employer’s payroll taxes. Previously, PPP did not permit deferment of these taxes on the forgivable portion of the loan. Specifically, PPPFA allows borrowers to defer 50% of the employer’s share of payroll taxes until 2021 and the remaining 50% until 2022.
Borrowers should look for additional guidance and rules from the U.S. Treasury Department and the U.S. Small Business Administration.
New York – Waiver of Copayments, Coinsurance, and Annual Deductibles for Mental Health Services Rendered by In-Network Providers on an Outpatient Basis for Essential Workers
When: Effective immediately; expires July 31, 2020.
Why: To ensure that essential workers have access to mental health services this amendment is promulgated on an emergency basis for the preservation of public health and general welfare.
What: The amendment provides that no essential worker shall be required to pay, copayments, coinsurance, or annual deductibles (unless required by federal law for a high deductible health plan) for mental health services rendered by in-network providers on an outpatient basis for essential workers.
Also, the amendment requires every health care plan to provide written notification of the requirements of the amendment to its in-network mental health providers to ensure that the providers do not require an insured to pay a copayment, coinsurance, or annual deductible that is prohibited from being imposed pursuant to the amendment.
Furthermore, every health care plan is expected to reimburse a provider, including reimbursement for the insured’s waived copayment, coinsurance, or annual deductible, with respect to any affected claims.
Who: Health care plans: Insurers and health maintenance organizations who issue a policy or contract delivered or issued in New York that provides comprehensive coverage for hospital, surgical, or medical care must comply with the temporary directive.
Essential workers: The rule applies to essential workers defined as individuals who are, or were, during the current state of emergency declared by Governor Andrew M. Cuomo on March 7, 2020, employed as:
Health care workers, first responders, or in any position within a nursing home, long-term care facility, or other congregate care setting.
The list of essential workers includes additional occupations such as correction/parole/probation officers; direct care providers; and firefighters. Please see the link below for the complete list.
Essential employees who directly interact or interacted with the public while working, including: animal care workers (e.g., veterinarians); automotive service and repair workers; retail workers at essential businesses (e.g., grocery stores, pharmacies, convenience stores, gas stations, and hardware stores); teachers, professors, educators. (Please see the link below for the complete list.)
EEOC, OSHA AND ADA RECOMMENDATIONS FOR RE-OPENING YOUR OFFICE
Although these are “recommendations”, this will vary depending on office policy, social distancing risks, employee occupations, field work and a host of other concerns relative to your particular business.
First and foremost, there is NO guidance from any Governmental office that clarifies any of the recommendations below that will stop an employee from a lawsuit. For instance, you re-open your office and someone coughs – then the person who walked by them gets sick OR they are on an elevator and claim that you are putting them in harm’s way, etc. The risk can be lessened if you have the proper documentation an employee should sign, but it will not prevent ALL claims by employees.
According to OSHA/ADA/EEOC, although there are a few conflicts:
You MAY check temperature, ask questions about health, inquire about others in a household, discuss symptoms, diagnosis’, ask about fevers, coughs, shortness of breath, sore throat, headaches, chills, gastro issues, ability to smell/taste.
You may NOT discuss: age, underlying health issues, pregnancy UNLESS the employee brings any of the above to your attention with concerns about how it may affect them due to COVID-19 and exposure. This includes mental health issues – the employee would have to disclose this to you, rather than an employer – even with prior knowledge bringing this up in a conversation
Anything and EVERYTHING is subject to HIPAA laws, which means you may NOT disclose any health information to anyone outside of your HR Dept, including the owner, other employees, etc. You may issue information that states that there is an employee with symptoms, but not the name of that employee.
You must make reasonable accommodations for any employee who claims that the risk to their health, because of a disclosed condition, warrants a change in their work-related space/location. If you know it’s due to a mental health condition, that is treated the same as any other medical issue.
What can you do to prepare your office/field work for re-opening:
– Have appropriate PPE
– Set standards of what must be wore at work, for instance, masks, gloves, hand sanitizer, distancing guidelines, googles, etc
– Set up mandatory training sessions with requirements for allowing someone to return to work
– Have a document, which I’ve sent to you, for employees to sign with expectations for coming into work
– Use the document (you should adjust as necessary) I sent for visitors to sign before they may enter your premises
– You must provide ALL PPE for employees and visitors
– LISTEN to all concerns by employees BEFORE you re-open
– Discuss “whistle-blowing” issues and anonymous reporting of illness
– Try to make openings/closings “touchless”, so doors remain untouched for entry and exits
– Have a cleaning schedule every employee can view showing what you are doing to make the office safe for return
Issues that you should consider:
– Should you stagger your entry to the office, for instance provide times each person should arrive
– When someone arrives, you might have them bring an employer provided temperature strip that they must put on their forehead to show they have no fever (in a private setting only)
– You may need 5 minutes to conduct a Q&A about their health on a daily basis
– You must be careful that others do not see you “sending away” a person that may not be approved to return to work
– You can ask for “volunteers” to come to the office instead of demand everyone return and gradually re-open
If someone is suspected of being ill:
– ISOLATE IMMEDIATELY
– Send them home and ask how you can help them
– Let them know they cannot come back to work after infection until they are 100% recovered for at least 72 hours, which means no fever without any medication, respiratory system recovered, have two negative results and a letter from a physician
What do you do if someone refuses to return to work due to FEAR:
– If the fear has no basis, you may terminate, however you must consider the following:
o Mental health fears are a medical issue
o Age may be a factor
o Pre-existing conditions are valid
– You must do everything possible to accommodate, which means possibly allowing them to telecommute, change their desk area, alter their time at work, etc.
This is a work in progress. Congress is discussing protections for employers from employee and customers to prevent frivolous action, while protecting each and every working American.
Employers Can Let Workers Change Health Plans Without Waiting
The I.R.S. is giving companies flexibility to allow those decisions, and on pretax accounts for medical expenses and child care, outside an enrollment period. New guidance from the Internal Revenue Service will allow companies to give workers more flexibility because of the coronavirus outbreak.Credit…Ting Shen for The New York Times
The Internal Revenue Service on Tuesday made it easier for employers to allow workers to make adjustments to their health insurance plans and flexible spending accounts in response to the coronavirus pandemic.
The changes could make it easier for workers who are furloughed to drop benefits temporarily and resume them when they return to work. They may also be attractive to workers who decided against buying health insurance earlier in the year but feel different now that they are worried about their risk of catching the coronavirus.
Cynthia Cox, a vice president at the Kaiser Family Foundation, a health research group, said employers might want new flexibility as a way of encouraging reluctant employees to return to work during the pandemic.
“I can imagine being an uninsured worker and being hesitant about returning to work and exposing myself to the virus without having health insurance,” she said.
Under the new guidance, employers will also be able to allow workers to make changes to pretax flexible spending accounts that pay for health expenses and dependent care.
Employers may also offer exceptions on rules for rollovers. For instance, people who had money left over from a plan that ran on the 2019 calendar year may be able to get the rest of this year to spend it. Other plans that normally end their 12-month spending period in May or June could get the same extension.The new guidance does not allow for extensions for flexible spending accounts that began their year in January. People in those accounts can, however, halt their savings now, in most instances, and try to spend what they’ve accumulated so far before they must forfeit it next year.
Signs of trouble – and progress – as Obamacare 2019 open enrollment nears
Jayne O’Donnell, USA TODAYPublished 6:00 a.m. ET Aug. 19, 2019 | Updated 6:04 p.m. ET Aug. 19, 2019
Ashley Candler of Austin was able to get in-patient addiction and mental health treatment thanks to the Affordable Care Act. (Photo: Courtesy of Ashley Candler)
The latest health insurance data gives new ammunition to the Trump administration as it touts the latest bad news on Obamacare, but supporters of the law say there are positive signs for the state and federal marketplaces as 2019 open enrollment nears.
There’s as much disagreement over why and whether things are worse as there was over the health law.
Health and Human Services Secretary Alex Azar tweeted that the 40% drop in people covered by insurance represents half what the Obama administration promised when the law passed.
This group that left the state and federal marketplaces doesn’t get federal tax credits to pay for their plans. Under the ACA, only people who make less than 400% of the federal poverty limit (or $103,000 for a family of four) are eligible for financial help.
The administration has also tried to repeal all and parts of the law, which ACA backers say has undermined the law, but some see bright spots in the more recent data.
Others say there’s plenty of blame to go around.
For those who don’t get federal help to pay their premiums, “there is nothing in the ACA that makes insurance affordable and nothing that has been passed that has or will bring down the cost of health insurance,” says Ronnell Nolan, a Baton Rouge, La. insurance broker and president of the trade group Health Agents for America. “Health care and the cost of drugs continue to skyrocket.”
The new numbers out Thursday from the Urban Institute show the uninsured rate climbed from 10.0 percent in 2016 to 10.2 percent in 2017, accounting for 700,000 fewer people with insurance.
Several factors, led by high premiums, slowed health insurance enrollment by people who aren’t getting their coverage subsidized by the government. Insurers that continued to sell on the exchanges after the first couple of years raised rates to adjust for sicker patients and these rates only soared higher after the administration refused to continue reimbursing insurers for their share of subsidies to reduce patients’ out of pocket costs.
Chief among them are all the other health insurance options that are now both available and allowable. Starting in 2020, They also include court battles over administration proposals including to allow employers to band together in what’s known as “association” health plans, the availability of group plans for as few as two people in some states and the elimination of the tax penalty for remaining uninsured.
“The result is that middle class people felt the full brunt and in many cases dropped out entirely,” says Larry Levitt, executive vice president at the non-profit Kaiser Family Foundation.
In some states, insurers can and will sell a group policy to even a married couple, said Nolan, although they have to work together. Tracy McMillan, who owns the Arlington, Texas-based Marketplace Insurance Exchange Group, says she has clients in very small group plans who wind up paying about half of what they’d pay if they bought unsubsidized plans on HealthCare.gov.
Some insurance companies maintain these plans violate the Employee Retirement income Security Act and agents including Gail Hiller-Lee in Uniondale, NY have been pushing state and federal regulators to make them more widely available because of the premiums self-employed people ineligible for subsidies are facing.
“We try to get them the cheapest price and group plans are cheaper than individual,” says Nolan.
Katherine Hempstead, a senior policy adviser at the Robert Wood Johnson Foundation, says there have been “signs of improvement” this year, including with enrollment by people who don’t receive financial help to buy their insurance.
Cathryn Donaldson, spokeswoman for the trade group America’s Health Insurance Plans, notes that every county had at least one option for individuals seeking insurance coverage. Premium increases were also generally lower, and decreased in some markets with increased competition.
Consumers in some rural states are starting to see more options and lower prices. Several states that have struggled with a lack of competition – Nebraska, Mississippi, Oklahoma, Utah, South Carolina, Wyoming and Iowa — all showed healthy increases in enrollment among people below 400% of the federal poverty limit, according to CMS’ new data.
Several insurance companies, including Bright Health, Oscar, Centene, Cigna, and Anthem, have expanded where they are selling after years of declines in overall insurance participation on the exchanges, says Hempstead. For 2020, Hempstead says she expects premium increases to be below average and more insurers to enter the marketplaces than leave. The number of counties with only one choice has been declining since 2018.
Problems remain, however. Along with paying for insurance, they include:
•Cost of care. Even the lowest income consumers who pay almost nothing out of pocket for their coverage, face considerable hurdles paying for their share of the actual care. McMillan hosts fundraisers to raise money for her low-income clients who need to use their cheap or even free insurance in emergencies yet can’t afford to.
•Spotty networks. Agents say many patients have trouble finding doctors who will accept the insurance they can afford. Debra Fallon and her husband Jim are paying nearly $1,000 a month with a $6,000 deductible for the least expensive plan they could find for Debra – and it doesn’t even include most of her doctors. Jim is on Medicare. The couple live in Dalworthington Gardens, Texas, where Debra’s Crohn’s Disease made it necessary for her to use the state’s high-risk pool to get her coverage before the ACA. The premium and deductible – $562 a month with a $1,000 deductible – was high at the time, but is now something they miss.
While the Fallons would be fine with the pre-ACA days, Ashley Candler of Austin credits the law with “saving her life.”
She had thousands of dollars in medical debt when the ACA passed and had no insurance after a divorce. Now she doesn’t have to pay anything for a premiums and just has to meet an $1,800 deductible. Candler says she suffers from post-traumatic stress disorder, bipolar disorder and attention deficit hyperactivity disorder. With insurance, she could get professional help for her mental health and in-patient treatment for addictions.
“Having the Affordable Care act made going to a regular doctor appointment less stressful due to not having to pay an arm and a leg to see a doctor,” said Candler.
Since 1954 Hiller Inusrance has focused on providing legal services related to healthcare reform and employee benefits.