July 12, 2023
Published by America's Benefit Specialist July 2023
We may be at the halfway point of the year, but there are still big things on the horizon that brokers should be keeping an eye on. Your clients are depending on you to help them stay on top of key deadlines and to understand their responsibilities with respect to changing legislation and legal rulings. Here are three issues your clients need to be aware of:
GAG CLAUSE ATTESTATION
Both employer groups and insurance carriers must attest that they have not engaged in contracts with providers that have gag clauses. The Consolidated Appropriations Act (CAA) defines a "gag clause" as:
- restrictions on the disclosure of provider-specific cost of quality-of-care information or data to parties such as the plan sponsor, participants, beneficiaries or referring providers
- restrictions on electronic access to de-identified claims and encounter information or data for each participant, beneficiary or enrollee upon request and consistent with HIPAA, GINA and ADA privacy regulations
- financial information, such as the allowed amount, or any other claim-related financial obligations included in the provider contract
- provider information, including name and clinical designation
- service codes or any other data element included in the claim transactions
- restrictions on sharing information or data or directing that such information or data be shared with a business associate
The "no gag clause" rule applies to contracts between a plan and a healthcare provider, a network or association of providers, a third-party administrator or another service provider offering access to a network of providers. The gag clause provisions of the CAA (specifically Code section 9824, ERISA section 724 and PHSA § 2799A 9(a)(l)) generally prohibit plans and carriers from entering into agreements with providers, TPAs or other service providers that include such provisions.
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. If a contract between a group health plan and TPA states that the plan sponsor's access to provider-specific cost and quality-of-care information is only available at the TPA's discretion, that would also constitute a gag clause.
What it means for you: Make sure your employer groups understand their responsibilities related to attestation. The first Gag Clause Prohibition Compliance Attestation is due no later than December 31, 2023, but don't wait! This requirement applies to employer groups of all sizes. Make sure your clients understand that there are no exceptions.
The first attestation covers the period beginning December 27, 2020, (or the effective date of the applicable group health plan or health insurance coverage, if later) through the date of attestation. Employers should visit the official Gag Clause Prohibition Compliance Attestation website, https://hios.cms.gov/HIOS-GCPCA-UI, for instructions on how to submit.
Subsequent attestations (covering the period since the last preceding attestation) are due by December 31 of each year thereafter.
Moving forward, self-funded plans that are engaging new partners or carriers should carefully review contracts to ensure there are no gag clauses.
In March 2020, as part of COVID-19 relief legislation, Congress provided increased Medicaid funding to states. States had to meet several conditions to receive the federal funds-collectively called a Maintenance of Effort (MOE) requirement-as well as a "continuous coverage" requirement that prohibited states from terminating most Medicaid enrollees' coverage until after the public health emergency ended.
During the PHE, Medicaid agencies could not disenroll anyone from Medicaid unless the individual asked to be disenrolled, moved out of state or died. Continuous coverage allowed millions of people to stay covered without any interruption during the pandemic.
Since the PHE ended in May 2023, states have begun "unwinding"-the process by which states resume annual Medicaid-eligibility reviews. Medicaid agencies will first attempt to complete an automated renewal based on information available to them. If that is not possible, agencies then send renewal notices and requests for information to enrollees. When enrollees respond, agencies process the cases, renew coverage for those who remain eligible, and notify those who are no longer eligible that their coverage will end.
If enrollees don't respond-because they don't get the request for information due to having changed their address or phone number or they don't understand what they are supposed to do, for example-their coverage will end.
There are an estimated 90 million people enrolled in Medicaid today; all of them will need to be reviewed for eligibility during unwinding. Estimates are that 15 million to 18 million people will lose Medicaid coverage during this process. Up to 4 million individuals may be eligible for employer-based insurance plans, but others need to move to federal or statebased exchanges, where they may be eligible for subsidies.
The unwinding process could take 12 to 14 months in each state, with each state determining its own timeline. Because of this, a special enrollment period (through July 2024) allows affected individuals to enroll in an employer-based plan or the individual market.
What it means for you: Visit Georgetown University's SO-State Unwinding Tracker (https://ccf.georgetown. edu/2023/04/01/state-unwinding-tracker/) for a data dashboard and links to individual state resources and timelines. Reach out to clients who may no longer qualify for Medicaid coverage to discuss their options for private health insurance or Medicare-related products.
Each state is managing unwinding differently, so some current Medicaid enrollees may not realize they will be losing access to the program. As part of open-enrollment communications, employers may want to include information about Medicaid unwinding to prompt employees currently enrolled in Medicaid that they should elect company-sponsored benefits during open enrollment rather than waiting until the state completes its review.
RULING ON PREVENTATIVE CARE
In March, a federal judge struck down a key provision of the ACA, ruling that certain aspects of the preventive care mandate violate the Constitution. The legal challenge was brought by eight individuals and two businesses, all from Texas. They argued that the mandate for plans to cover drugs related to HIV prevention requires business owners and consumers to pay for services that are counter to their religious beliefs.
A nationwide injunction has been issued, halting certain preventative-care coverage. What this means for your clients will depend on whether they are fully insured or self-funded.
The injunction will not have any immediate impact on employers with fully insured plans as those plans are approved by the state and the terms are likely locked in until renewal. Additionally, those fully insured policies may be subject to certain state preventive care mandate requirements.
For employers with self-funded group health plans, the injunction allows employers the option to amend their plans to make changes, such as implementing cost sharing for the preventive-care services impacted by the decision, including screenings for cancer, mental health, HIV and diabetes, colonoscopies, pap smears and tobacco-cessation services. These employers have the option to implement cost sharing for some or all of these screenings, but are not required to do so, nor is there a time frame in which they must decide.
The Justice Department is appealing the judge's decision, so it is possible that this decision will be reversed. If appeals continue to the Supreme Court, as many ACA challenges do, a final decision may not come until some time in 2024.
What it means for you: Reach out to both fully insured and self-funded clients to make sure they are aware of the ruling and understand whether or not it applies to them.
Employers with self-funded plans should not feel rushed to amend plans; changes come with their own complications around informing employees and managing their reactions. Employees who have become accustomed to accessing screenings and preventative care without cost sharing may react negatively to the takeaway of expected benefits. Additionally, preventative screenings enable patients to iden-tify and address issues early, potentially avoiding invasive, expensive treatments later. For employers that self-fund, the implications of delayed diagnoses and care can be costly.
While these are not the only legislative and regulatory issues to watch in the latter half of the year, they are a good starting point for client conversations. Your clients will appreciate your guidance in navigating compliance issues and understanding their responsibilities.