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Brown & Brown — Health and Welfare Plan Compliance FAQs Webinar (November 2024)
64 slides from Brown & Brown's conference presentation, Nov 21, 2024
Slide 1: This Webinar Will Start Momentarily
This Webinar Will Start Momentarily. Thank you for joining us.
Slide 2: Health and Welfare Plan Compliance FAQs
Health and Welfare Plan Compliance FAQs November 21, 2024 Presented By: Christopher Bao, Brittany Brown & Brown Regulatory and Botterill, Cindy Niesen and Cara Legislative Strategy Group Eakles
Slide 3: Disclaimer
DISCLAIMER Brown & Brown, Inc. and all its affiliates, do not provide legal, regulatory or tax guidance, or advice. If legal advice counsel or representation is needed, the services of a legal professional should be sought. The information in this document is intended to provide a general overview o
Slide 4: What Information is Contained within the Recently Released Final Rules on MHPAEA?
What Information is Contained within the Recently Released Final Rules on the Mental Health Parity and Addiction Equity Act (MHPAEA)?
Slide 5: Mental Health Parity (MHPAEA) – Generally
Mental Health Parity (MHPAEA) – Generally
Slide 6: MHPAEA: Current Rules
MHPAEA: Current Rules “ “A group health plan (or health insurance coverage offered by an issuer in connection with a group health plan) that provides both medical/surgical benefits and mental health or substance use disorder benefits may not apply any financial requirement or treatment limitation to
Slide 7: MHPAEA: Financial-QTL-NQTL
MHPAEA: Financial-QTL-NQTL Three Elements of Parity between MH/SUD Benefits and M/S Benefits 1 Financial Requirements (e.g., Copays/Deductibles/MOOPs) 2 Quantitative Treatment Limitations (QTLs) (e.g., Number of Visits) 3 Non-Quantitative Treatment Limitations (NQTLs) (e.g., Prior Authorizations) »
Slide 8: MHPAEA: Current Rules
MHPAEA: Current Rules R E Q U I R E D C L A S S I F I C AT I O N S O F B E N E F I T S U S E D : Inpatient, Outpatient, Emergency Care In-Network In-Network Inpatient, Outpatient, Prescription Drug Out-of- Network Out-of-Network Formularies BROW N & BROW N | 8
Slide 9: MHPAEA: Final Rules
MHPAEA: Final Rules Final Rules Focus on Comparative Analysis of NQTLs for MH/SUD Benefits and M/S Benefits Generally, a plan must ensure that, as written and in operation, any NQTL that is applied to MH/SUD benefits is comparable to, and applied no more stringently than, the M/S benefits offered un
Slide 10: MHPAEA: Six Elements of NQTL Analysis
MHPAEA: Six Elements of NQTL Analysis Six elements must be contained in NQTL Comparative Analysis (Effective for PYs beginning on or after 1/1/25, except Relevant Data Requirement effective for PYs beginning on or after 1/1/26). The identification and A description of how factors A description of th
Slide 11: MHPAEA NQTL: Reasoning Behind NQTL
MHPAEA NQTL: Reasoning Behind NQTL EFFECTIVE JANU ARY 1, 2025 Generally, a plan must ensure that, as written and in Health Plans Must Perform Comparative operation, any NQTL applied to MH/SUD benefits is Analysis on NQTL comparable to, and applied no more stringently than, the M/S benefits offered u
Slide 12: MHPAEA and ERISA Fiduciary Duties
MHPAEA and ERISA Fiduciary Duties
Slide 13: MHPAEA: ERISA and Fiduciary Responsibilities
MHPAEA: ERISA and Fiduciary Responsibilities E R I S A A N D M H P A E A A N A LY S I S Effective first day of PYs beginning on or after January 1, 2025 • ERISA Plans - NQTL comparative analysis needs to include a certification by a "named fiduciary" as part of the Findings and Conclusions. Certific
Slide 14: MHPAEA – NQTL Comparative Analysis Deadlines
Mental Health Parity (MHPAEA) – NQTL Comparative Analysis Deadlines
Slide 15: NQTLs and The Comparative Analysis
NQTLs and The Comparative Analysis Requirement for Production of NQTL Comparative Analysis to Governmental Agencies Plans and issuers must provide a plan’s NQTL comparative analysis to a requesting governmental agency within ten (10) business days of a request for such information. Further, the fina
Slide 16: Implications of the Loper Bright Case on Health and Welfare Benefits
What Implications does the Loper Bright case have on Health and Welfare Benefits?
Slide 17: Loper Bright: Chevron Doctrine Overturned
Loper Bright: Chevron Doctrine Overturned Background Practical Application For approximately 40 years, the Chevron doctrine was in • Even before Loper Bright, litigants could bring a case place, requiring courts to give deference to certain to challenge the federal regulations. However, some federal
Slide 18: Loper Bright: Chevron Doctrine Overturned
Loper Bright: Chevron Doctrine Overturned Examples of Legal Challenges to Regulations Imposed on Employee Health and Welfare Benefit Plans Post-Loper Bright • ACA Section 1557 – Nondiscrimination in health programs and activities (current stay on this law under multiple district courts) • Mental Hea
Slide 19: Medicare Part D (Prescription Drug Coverage) FAQs
Medicare Part D (Prescription Drug Coverage) FAQs
Slide 20: Medicare Part D FAQs
Medicare Part D FAQs What are the 2025 Medicare Part D prescription drug coverage changes? • Inflation Reduction Act changes to Medicare Part D Enrollee Cost Share3: effective January 1, 2025 will increase the actuarial value of Phase 2024 2025 Medicare Part D prescription drug coverage, which may a
Slide 21: Medicare Part D FAQs
Medicare Part D FAQs How do we know if creditable coverage status for the prescription drug benefits under our group health plan is affected? 2009 (current) guidance includes two methods for determining whether a Integrated Plans group health plan’s drug benefits are A plan may be considered an inte
Slide 22: Medicare Part D FAQs
Medicare Part D FAQs What is "creditable coverage" under the "Simplified Determination Method?" Integrated Plans Non-integrated Plans (1) Coverage for brand and generic Rx Coverage for brand and generic Rx (2) Reasonable access to retail providers Reasonable access to retail providers (3) Designed t
Slide 23: Medicare Part D FAQs
Medicare Part D FAQs How will creditable coverage be determined in 2025 and later years? • Per CMS Calendar Year 2025 Part D Redesign Program Instructions: » If a plan is found to be creditable under the simplified determination method, it would be considered creditable until December 31, 2025, rega
Slide 24: Medicare Part D FAQs
Medicare Part D FAQs What notice requirements apply to health plan sponsors? • Notice of creditable or non-creditable prescription drug coverage must be provided to Medicare-eligible participants and beneficiaries: 1. Before the start of the Medicare Part D annual coordinated enrollment period (ACEP
Slide 25: Medicare Part D FAQs
Medicare Part D FAQs How does the creditable or non-creditable determination affect Medicare-eligible participants and beneficiaries? If coverage remains creditable for 2025 plan year: If coverage becomes non-creditable for the • Individuals covered by the group health plan will receive a notice (fr
Slide 26: Medicare Part D FAQs
Medicare Part D FAQs Is there a Medicare special enrollment that applies? • If an employee or employee’s covered spouse or dependent is • Medicare Part B has a special enrollment window (with no eligible for Medicare due to age or disability, there is a special penalties) that applies each of the fo
Slide 27: What are the ERISA Fiduciary Rules?
What are the ERISA Fiduciary Rules?
Slide 28: ERISA Plans
ERISA Plans All employee health and welfare benefit plans of private employers (both for-profit and not-for-profit) are subject to ERISA. 1 Church Plans There are two kinds of health plans exempt from ERISA: 2 Governmental Plans BROW N & BROW N | 28
Slide 29: ERISA Plan Fiduciary
ERISA Plan Fiduciary ERISA §402 Named Fiduciaries (1) Every employee benefit plan shall be established and maintained pursuant to a written instrument. Such instrument shall provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation an
Slide 30: Identifying Plan Fiduciary
Identifying Plan Fiduciary Who is a plan fiduciary? • Automatic Fiduciaries: Named fiduciaries, trustees, and plan administrators • Functional Fiduciaries: A person with either: (1) discretionary authority or control over the plan’s management; (2) any authority or control over the management or dis
Slide 31: ERISA: Key Fiduciary Duties
ERISA: Key Fiduciary Duties Duty of Loyalty • Manage the plan solely in the interest of participants and beneficiaries • Plan assets must be used for exclusive purpose of providing benefits to participants and defraying reasonable expenses of administering plan Duty to Act Prudently • Act with care,
Slide 32: Examples of Fiduciary Duties for ERISA Health Plans
What are Examples of Fiduciary Duties as they Relate to Health Plans Subject to ERISA?
Slide 33: Managing ERISA Plan Assets
Managing ERISA Plan Assets W H AT A R E P L A N A S S E T S ? Plan assets can exist in three ways: 1 Employee Contributions Funded Arrangements 1) Segregated account where plan has beneficial 2 interest 2) Account in the name of the health plan 3) Trust General Assets Employer dollars that are not s
Slide 34: Managing ERISA Plan Assets
Managing ERISA Plan Assets D U T Y O F L O YA L T Y A N D E X C L U S I V E B E N E F I T R U L E ERISA plan sponsors must use plan assets for the exclusive benefit of plan participants. Providing benefits to plan participants; or Used to defray reasonable administrative expenses directly “benefitti
Slide 35: Managing ERISA Plan Assets
Managing ERISA Plan Assets EXAMPLES OF MANAGING ERISA PLAN ASSETS Medical Loss Ratio (MLR) Rebates Participant Forfeitures and Experience Gains • If any portion of the MLR rebate constitutes plan • Health FSA: Use-or-Lose Rule assets, ERISA’s fiduciary rules will apply. » Any health FSA contribution
Slide 36: Selecting & Monitoring Service Providers - Examples
Selecting & Monitoring Service Providers - Examples D U T Y T O A C T P R U D E N T LY Selecting Service Provider/TPA Monitoring Service Provider/TPA • Selecting plan service providers/TPAs is a fiduciary • Ongoing fiduciary duty to proactively monitor TPA function when the third-party performs serv
Slide 37: Enforcement
Enforcement
Slide 38: Fiduciary Liability
Fiduciary Liability ERISA § 409 • Personal liability for fiduciary breach » Person who is a fiduciary with respect to a plan can be personally liable for losses caused to the plan and liable to restore to the plan any profits the fiduciary made through use of plan assets ERISA § 502 • Civil enforcem
Slide 39: Fiduciary Liability
Fiduciary Liability ERISA § 502 • DOL Enforcement » Any breach of fiduciary responsibility by a fiduciary, or » Any knowing participation in such a breach or violation by any other person, the DOL may assess a civil penalty against the fiduciary or other person in an amount equal to 20% of the amoun
Slide 40: Fiduciary Rules in Practice
Fiduciary Rules in Practice
Slide 41: Johnson & Johnson Litigation
Johnson & Johnson Litigation Background – Plan participants/beneficiaries (plaintiffs) sued Johnson & Johnson (the health plan sponsor) and other plan fiduciaries for breach of fiduciary duties related to its health plan (among other claims). • Complaint alleges, among other things, that defendants
Slide 42: Johnson & Johnson and Wells Fargo
Johnson & Johnson and Wells Fargo W H AT ’ S N E X T ? Only a pleading at this time: Not a Time to Panic • Anyone can file a claim/pleading against an • Anything can happen, and just because a pleading is filed employer/health plan does not mean J&J (or any other plan fiduciary) breached • No veraci
Slide 43: Essential Health Benefits: Prescription Drug Coverage
Essential Health Benefits: Prescription Drug Coverage
Slide 44: What is FAQ 66 and how does it apply to Large Group/SF plans?
What is FAQ 66 and how does it apply to Large Group/SF plans? Public Health Service Act (PHS Act) Section 2711 FAQ 66 Specifically, the Departments intend to propose rulemaking…that all PHS Act Section 2711 (added by the ACA) prohibits group health group health plans and health insurance coverage su
Slide 45: What are Essential Health Benefits?
What are Essential Health Benefits? Essential Health Benefits There are 10 categories of items and services that are considered essential health benefits (EHB). 1. Ambulatory patient services 2. Emergency services 3. Hospitalization 4. Maternity and newborn care 5. Mental health and substance use di
Slide 46: How does this impact employer-sponsored group health plans?
How does this impact employer-sponsored group health plans? Essential Health Benefits • Non-grandfathered FI small group and individual plans must offer all ten categories of EHBs, and could also be subject to stricter requirements for EHBs under law of the state in which policy is written • Self-fu
Slide 47: Class Action Suit for Wellness Programs Under the ADA and GINA
Class Action Suit for Wellness Programs Under the ADA and GINA
Slide 48: What are the concerns for employer wellness programs?
What are the concerns for employer wellness programs? General Overview Main Concerns • Wellness programs are designed to promote health • Employers should be conscious of whether or prevent disease and can be offered as a part of, participation in the program is truly “voluntary” and if or related t
Slide 49: What court cases involve wellness programs?
What court cases involve wellness programs? Wellness Program Class Action Lawsuit • An employer offered a wellness program that provided a premium discount if employees took a biometric test and met other standards for criteria such as blood sugar, blood pressure, and cholesterol. • Upon enrolling i
Slide 50: What court cases involve wellness programs?
What court cases involve wellness programs? CONTINUED Wellness Program Class Action Lawsuit Proceeds • The court did not allow the case to be dismissed, and therefore the class action lawsuit was allowed to continue against the employer. • The court found that because there was a medical examination
Slide 51: What court cases involve wellness programs?
What court cases involve wellness programs? CONTINUED Possible Liability under the Genetic Information Nondiscrimination Act (GINA) • While the focus of this lawsuit was ADA wellness requirements, there could be additional concerns under GINA. • The GINA law prohibits genetic discrimination for empl
Slide 52: What court cases involve wellness programs?
What court cases involve wellness programs? CONTINUED Wellness Program Class Action Lawsuit • An employer began charging employees who use tobacco with extra fees per pay period for their health insurance coverage. • Employees claimed that they were required to pay an additional $30 in premium per p
Slide 53: HIPAA Final Rules on Reproductive Healthcare Records of Individuals
What are the HIPAA Final Rules on Reproductive Healthcare Records of Individuals
Slide 54: Background - HIPAA
Background - HIPAA • The HIPAA privacy and security rules generally apply to covered entities (e.g., group health plan) and regulate the use and disclosure of an individual’s protected health information (PHI) » Most health plans are required to have policies and procedures, business associate agree
Slide 55: What is the HIPAA Final Rule on Reproductive Healthcare Records?
What is the HIPAA Final Rule on Reproductive Healthcare Records? • On April 26, 2024, the Office for Civil Rights (OCR) at the Department of Health & Human Services (HHS) published its “Final Rule to Support Reproductive Health Care Privacy” • The final rule adopts a “purpose-based prohibition” on t
Slide 56: What is the HIPAA Final Rule on Reproductive Healthcare Records?
What is the HIPAA Final Rule on Reproductive Healthcare Records? • The new privacy protections prohibit a health plan and its business associates from using or disclosing PHI of a covered individual for the following purposes: » When conducting a criminal, civil or administrative investigation into
Slide 57: What is the HIPAA Final Rule on Reproductive Healthcare Records?
What is the HIPAA Final Rule on Reproductive Healthcare Records? • The prohibition on using or disclosing PHI would not apply, even if the information is related to reproductive healthcare PHI, for the following purposes: » When a healthcare provider uses/discloses PHI to help defend itself against
Slide 58: What are the attestation requirements?
What are the attestation requirements? • If a health plan or its business associate receives a request for reproductive healthcare PHI, it must collect a signed attestation(in certain situations) from the person/entity requesting the PHI that the collection of PHI it is not for a prohibited purpose.
Slide 59: What are the required changes to the Notice of Privacy Practices?
What are the required changes to the Notice of Privacy Practices? • Health plans must revise their HIPAA Notice of Privacy Practices (NPP) to reflect the following: » The final rule on HIPAA reproductive healthcare privacy and disclosure » Provisions on confidentiality of medical records relating to
Slide 60: HIPAA Final Rule – Pending Litigation
HIPAA Final Rule – Pending Litigation • On September 4, 2024, the Texas Attorney General filed suit against HHS in federal District Court to block the HIPAA final rule prohibiting the disclosure of reproductive healthcare PHI in certain situations • Texas’s primary claims are that the HIPAA final ru
Slide 61: What actions should I take as the employer?
What actions should I take as the employer? • Customers should review their current HIPAA policies and procedures and business associate agreements and update them as necessary by December 23, 2024 • Customers should update their Notice of Privacy Practices by February 16, 2026 • If a customer recei
Slide 62: 2025 FSA and Commuter Benefit Limits
2025 FSA and Commuter Benefit Limits
Slide 63: 2025 Limits – FSA/Commuter Benefits
2025 Limits – FSA/Commuter Benefits Benefit 2024 2025 FSA (general purpose and limited purpose $3,200 $3,300 FSA) FSA Carryover $640 $660 Dependent Care FSA $5,000 $5,000 Commuter Benefits • Qualified Transportation Expenses • $315/month • $325/month • Qualified Parking Expenses • $315/month • $325/
Slide 64: Thank You!
THANK YOU! Any solicitation or invitation to discuss insurance sales or servicing is being provided at the request of Brown & Brown Insurance Services, Inc., an owned subsidiary of Brown & Brown, Inc. Brown & Brown Insurance Services, Inc., only provides insurance related solicitations or services t
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