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Anticipating the Future: Legislative and Compliance Matters to Monitor


September 12, 2023

As originally published in California Broker Magazine September 2023

As we move into the last quarter of 2023, it’s important for brokers to remain vigilant about upcoming developments. Your clients rely on your expertise and guidance to navigate important deadlines and understand their responsibilities when it comes to changing laws and legal rulings. Three significant deadlines and issues your clients need to know about are Medicaid Unwinding, Gag Clause Attestations, and the ruling on Preventative Care.

Medicaid Unwinding

In March 2020, Congress provided additional Medicaid funding to states as part of COVID-19 relief legislation. States had to meet certain requirements, including a “continuous coverage” provision that prevented most Medicaid enrollees’ coverage from being terminated during the Public Health Emergency (PHE). Since the PHE expired in May 2023, states are starting the process of “unwinding” by reviewing Medicaid eligibility.

It is estimated between 15 and 18 million people will lose Medicaid coverage during this process. Affected individuals have a special enrollment period that lasts until July 2024 to explore other coverage options. Approximately four million people could qualify for employer-based insurance plans. Employers should communicate this to all employees enrolled in Medicaid that could be affected by the unwinding process before open enrollment starts this fall. Meanwhile, brokers should provide information about private health insurance or Medicare-related products to their affected clients.

Gag Clause Attestation

A “gag clause” is a contractual provision that imposes limitations on the data and information a health plan or issuer can disclose to another party. Both employer groups and insurance carriers must attest that their contracts with providers do not have gag clauses. The rule against gag clauses is relevant to contracts between a healthcare plan and various entities such as healthcare providers, provider networks, third-party administrators (TPAs) or other service providers facilitating access to provider networks.

Employer groups of all sizes are required to submit a Gag Clause Prohibition Compliance Attestation by the end of the year. Simply put, it is proof you are in compliance with rules found in the Internal Revenue Code, Employee Retirement Income Security Act (ERISA), and Public Health Service Act. The initial attestation will cover the period from Dec. 27, 2020, or the effective date of the applicable group health plan or health insurance coverage, whichever is later, through the date of attestation. Employers will then need to submit subsequent attestations by Dec. 31 of each year.

Moving forward, brokers should carefully review contracts to ensure there are no gag clauses. Banning these types of provisions prevents companies from refusing to share provider-specific data, electronic access to anonymous claims, access to financial and provider information as well as provider information such as names or medical specialization. One example of a gag clause would be a contract between a group health plan and a TPA that states the plan will pay providers at designated “Point of Service Rates,” but the TPA contractually prohibits the plan from disclosing the rates to participants.

As brokers, it is crucial to assist clients in navigating compliance issues and ensure they have a clear understanding of their responsibilities. By providing guidance and support, brokers can help clients stay informed and prepared for any upcoming legislative or regulatory changes.

Ruling on Preventative Care

A federal judge recently struck down a provision of the preventative care mandate in the Affordable Care Act (ACA), claiming it violated the Constitution. The March ruling came after a legal challenge by individuals and businesses from Texas who argued the mandate went against their religious beliefs. A nationwide injunction was then issued, affecting certain preventative care coverage. The impact on your clients depends on whether they have fully insured or self funded plans.

Employers with self-funded plans have the option to change their plans in response to the injunction, while fully insured plans are not immediately affected. Employers with self-funded plans can choose to implement cost sharing, meaning enrollees would have to pay “out-of-pocket” for the affected preventative care services, such as cancer screenings, mental health screenings, HIV screenings, diabetes screenings, colonoscopies, pap spears and tobacco cessation services.

Before making a decision on cost sharing, it is important to consider that preventative screenings help to identify and address issues early on, potentially avoiding costly and invasive treatments in the future. Additionally, employees are more likely to take part in preventative screenings if there is no cost to them at the time of the service. There is no requirement for employers to make these changes, and there is no specific timeframe for the decision. The Justice Department is appealing the decision, so a final resolution may not be reached until 2024.

In the latter half of the year, there are various legislative and regulatory issues to keep an eye on, and while the issues mentioned here are important, they are not the only ones. As brokers, it is crucial to assist clients in navigating compliance issues and ensure they have a clear understanding of their responsibilities. By providing guidance and support, brokers can help clients stay informed and prepared for any upcoming legislative or regulatory changes.

Misty Baker is director of compliance and government affairs at BenefitMall. Misty is an Affordable Care Act compliance and agent advocate, specializing in ACA, ERISA, FMLA, COBRA, and legislative advocacy for over 20 years. She was a registered lobbyist in Texas for four years and is a strategic leader focused on compliance, agent knowledge, legislative advocacy, and ultimate client understanding of how to be successful in the changing world of compliance. Her passions include agent education, insurance advocacy inside and outside of the Capital, and compliance.

Misty was awarded one of the most influential women in employee benefit advising, by Employee Benefit Advisor 2015. She’s been a Member of National Association of Benefits and Insurance Professionals (NABIP) since 1999, where she’s currently serving on the NABIP Legislative team.