All posts in Health Care Reform

SBC Reducing Duplication


        Final Rule Updates SBC Requirement

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The 2012 regulations provide three special rules to avoid unnecessary duplication when providing the SBC. For example, the 2012 regulations provide that if either the plan or the issuer provides the SBC to a participant or beneficiary in accordance with the timing and content requirements, both will have satisfied their SBC obligations. The final regulations retain these rules, and also add new rules to prevent unnecessary duplication where:

     • A group health plan utilizes a binding contractual arrangement where
     another party assumes responsibility to provide the SBC

     • A group health plan uses two or more insurance products provided by
     separate issuers to insure benefits with respect to a single group health plan

     • The SBC for student health insurance coverage is provided by another
     party (such as an institution of higher education)

On June 16, 2015, the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments) published final regulations on the summary of benefits and coverage (SBC) and uniform glossary requirement under the Affordable Care Act (ACA).

These regulations finalize provisions in proposed regulations that were published on Dec. 30, 2014, in order to amend prior final regulations from Feb. 14, 2012. According to the Departments, the changes made by these final regulations are designed to improve consumers’ access to important health plan information and to provide clarification that will make it easier for group health plans and health insurance issuers to comply with the SBC requirement.


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SBC Formatting and Content Changes


        Final Rule Updates SBC Requirement

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The ACA limits the length of the SBC to four pages, but the 2012 regulations interpret this requirement to be four double-sided pages. The final regulations retain this interpretation, allowing the SBC to be four double-sided pages.

However, some plans and issuers have expressed concern regarding the difficulty of complying with the page limit while including all of the required information. Therefore, the final regulations provide that the Departments will address specific issues related to completing the four-page template, as well as the issues plans and issuers encounter while meeting these requirements, with the finalization of the new template and associated documents, separate from the final regulations.

The proposed regulations also included a number of changes to the content of the SBC and uniform glossary to reflect the ACA’s insurance market reforms. For example, references to annual limits for essential health benefits and pre-existing condition exclusions would be removed. In addition, the disclosures relating to continuation of coverage, minimum essential coverage and minimum value would be revised to provide more useful information to consumers, including those shopping in the individual market. These content changes were not finalized in the final regulations, but will likely be addressed when the new template and associated documents are finalized.

However, the final regulations do clarify that all plans and issuers must include the following on the SBC:

     • Contact information for questions.

     • A Web address where a copy of the actual individual coverage policy
     or group certificate of coverage can be reviewed and obtained.

On June 16, 2015, the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments) published final regulations on the summary of benefits and coverage (SBC) and uniform glossary requirement under the Affordable Care Act (ACA).

These regulations finalize provisions in proposed regulations that were published on Dec. 30, 2014, in order to amend prior final regulations from Feb. 14, 2012. According to the Departments, the changes made by these final regulations are designed to improve consumers’ access to important health plan information and to provide clarification that will make it easier for group health plans and health insurance issuers to comply with the SBC requirement.


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ADA and Wellness Programs Implications for Employers


        EEOC Issues Proposed Rule on the ADA and Wellness Programs

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The EEOC is seeking comments on the proposed rule and may make revisions to its guidance before it is finalized. While employers are not required to comply with the proposed rule before it is finalized, they may choose to do so. According to the EEOC, it is unlikely that a court or the EEOC would find an ADA violation where an employer complied with the proposed guidance until a final rule is issued.

On April 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) released a proposed rule that describes how the Americans with Disabilities Act (ADA) applies to employee wellness programs that include questions about employees’ health or medical examinations. Although the ADA limits when employers may inquire about employees’ health or require them to undergo medical examinations, these inquiries and exams are permitted if they are part of a voluntary wellness program.

The long-awaited proposed rule would provide much needed guidance for employers on how to structure employee wellness programs without violating the ADA. Most importantly, the proposed rule addresses the amount of incentives that may be offered under employee wellness programs that are part of group health plans. This amount is generally consistent with HIPAA’s limits on wellness program incentives, although the proposed rule does not fully incorporate HIPAA’s increased incentive limit for tobacco cessation programs.


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Wellness Programs


        EEOC Issues Proposed Rule on the ADA and Wellness Programs

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Many employers offer workplace wellness programs as a way to help control health care costs, encourage healthier lifestyles and prevent disease.

Employers may offer participatory wellness programs, which do not require individuals to meet a health-related standard in order to obtain an incentive. Participatory wellness programs include, for example, subsidized fitness club memberships, reimbursement of smoking cessation classes (without regard to whether the employee quits smoking) or rewards for completing a health risk assessment (HRA) without any further action required by the employee with respect to the health issues identified by the HRA.

Employers may also offer health-contingent wellness programs, which require individuals to satisfy a standard related to a health factor in order to obtain an incentive. For example, health-contingent wellness programs may require participants to participate in exercise programs, remain tobacco-free or attain certain results on biometric screenings (for example, low cholesterol, blood glucose and blood pressure levels) to obtain an incentive.

Wellness program incentives can be framed as rewards or penalties and often take the form of prizes, cash, or a reduction or increase in health care premiums or cost-sharing.

On April 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) released a proposed rule that describes how the Americans with Disabilities Act (ADA) applies to employee wellness programs that include questions about employees’ health or medical examinations. Although the ADA limits when employers may inquire about employees’ health or require them to undergo medical examinations, these inquiries and exams are permitted if they are part of a voluntary wellness program.

The long-awaited proposed rule would provide much needed guidance for employers on how to structure employee wellness programs without violating the ADA. Most importantly, the proposed rule addresses the amount of incentives that may be offered under employee wellness programs that are part of group health plans. This amount is generally consistent with HIPAA’s limits on wellness program incentives, although the proposed rule does not fully incorporate HIPAA’s increased incentive limit for tobacco cessation programs.


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Legal Concerns for the ADA and Wellness Programs


        EEOC Issues Proposed Rule on the ADA and Wellness Programs

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Employee wellness programs must be carefully designed to comply with the ADA and other federal laws that prohibit discrimination based on race, color, sex (including pregnancy), national origin, religion, compensation, age or genetic information.

Additionally, wellness programs that are part of group health plans must be designed to comply with HIPAA’s nondiscrimination requirements, as amended by the Affordable Care Act (ACA). Under HIPAA, health-contingent wellness programs are required to follow certain standards related to nondiscrimination, including a standard that limits the amount of incentives that can be offered. The maximum reward under HIPAA for health-contingent wellness programs is 30 percent of the cost of health coverage (or 50 percent for programs designed to prevent or reduce tobacco use).

On April 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) released a proposed rule that describes how the Americans with Disabilities Act (ADA) applies to employee wellness programs that include questions about employees’ health or medical examinations. Although the ADA limits when employers may inquire about employees’ health or require them to undergo medical examinations, these inquiries and exams are permitted if they are part of a voluntary wellness program.

The long-awaited proposed rule would provide much needed guidance for employers on how to structure employee wellness programs without violating the ADA. Most importantly, the proposed rule addresses the amount of incentives that may be offered under employee wellness programs that are part of group health plans. This amount is generally consistent with HIPAA’s limits on wellness program incentives, although the proposed rule does not fully incorporate HIPAA’s increased incentive limit for tobacco cessation programs.


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ADA and Wellness Program Background


        EEOC Issues Proposed Rule on the ADA and Wellness Programs

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The ADA prohibits employers with 15 or more employees from discriminating against individuals with disabilities. Under the ADA, an employer may make disability-related inquiries and require medical examinations after employment begins only if they are job-related and consistent with business necessity. However, these inquiries and exams are permitted if they are part of a voluntary wellness program.

Neither the ADA nor prior EEOC guidance addressed the extent to which incentives affected the voluntary nature of a wellness program. Recently, the EEOC filed well-publicized lawsuits against a number of employers, alleging that their wellness programs violated the ADA and other federal fair employment laws. In response, Congress called on the EEOC to issue guidance on wellness programs and introduced legislation, the Preserving Employee Wellness Program Act, to provide more certainty for employers regarding wellness programs.

On April 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) released a proposed rule that describes how the Americans with Disabilities Act (ADA) applies to employee wellness programs that include questions about employees’ health or medical examinations. Although the ADA limits when employers may inquire about employees’ health or require them to undergo medical examinations, these inquiries and exams are permitted if they are part of a voluntary wellness program.

The long-awaited proposed rule would provide much needed guidance for employers on how to structure employee wellness programs without violating the ADA. Most importantly, the proposed rule addresses the amount of incentives that may be offered under employee wellness programs that are part of group health plans. This amount is generally consistent with HIPAA’s limits on wellness program incentives, although the proposed rule does not fully incorporate HIPAA’s increased incentive limit for tobacco cessation programs.


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ADA and Wellness Programs Proposed Guidance


        EEOC Issues Proposed Rule on the ADA and Wellness Programs

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The EEOC’s proposed rule would establish the following parameters for permissible wellness program designs under the ADA.

     Reasonable Design: A wellness program must be reasonably designed to promote health or prevent disease. A program that collects information on an HRA to provide feedback to employees about their health risks, or that uses aggregate information from HRAs to design programs aimed at particular medical conditions is reasonably designed. A program that collects information without providing feedback to employees or without using the information to design specific health programs is not reasonably designed.

     Voluntary: Wellness programs must be voluntary. Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating. Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate or threaten employees to get them to participate or achieve certain health outcomes.

     Employee Notice: For wellness programs that are part of group health plans, employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used and how it will be kept confidential.

     Limited Incentives: For wellness programs that are part of group health plans, employers may offer limited incentives for employees to participate in the programs or to achieve certain health outcomes. Consistent with HIPAA, the amount of the incentive that may be offered for an employee to participate or to achieve health outcomes may not exceed 30 percent of the total cost of employee-only coverage. For example, if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.

This incentive limit only applies to wellness programs that include disability-related inquiries or medical examinations. According to the EEOC, a smoking cessation program that merely asks employees whether they use tobacco (or whether they stopped using tobacco upon completion of the program) is not a wellness program that includes disability-related inquiries or medical examinations. Thus, the EEOC’s proposed guidance would allow an employer to offer incentives as high as 50 percent of the cost of employee coverage for that smoking cessation program, consistent with HIPAA’s requirements. However, an incentive tied to a biometric screening or medical examination that tests for the presence of tobacco would be limited to 30 percent under the proposed rule.

     Confidentiality: Medical information obtained as part of a wellness program must be kept confidential. Generally, employers may only receive medical information in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific employees.

Wellness programs that are part of a group health plan may generally comply with their obligation to keep medical information confidential by complying with the HIPAA Privacy Rule. Employers that are not HIPAA covered entities may generally comply with the ADA by signing a certification, as provided for by HIPAA regulations, that they will not use or disclose individually identifiable medical information for employment purposes and abiding by that certification.

Practices such as training individuals in the handling of confidential medical information, encryption of information in electronic form, and prompt reporting of breaches in confidentiality can help assure employees that their medical information is being handled properly.

     Reasonable Accommodations: Employers must provide reasonable accommodations that enable employees with disabilities to participate and to earn whatever incentives the employer offers. For example, an employer that offers an incentive for employees to attend a nutrition class must, absent undue hardship, provide a sign language interpreter for a deaf employee who needs one to participate in the class. An employer also may need to provide materials related to a wellness program in alternate format, such as large print or Braille, for someone with vision impairment. An employer may need to provide an alternative to a blood test if an employee’s disability would make drawing blood dangerous.

On April 16, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) released a proposed rule that describes how the Americans with Disabilities Act (ADA) applies to employee wellness programs that include questions about employees’ health or medical examinations. Although the ADA limits when employers may inquire about employees’ health or require them to undergo medical examinations, these inquiries and exams are permitted if they are part of a voluntary wellness program.

The long-awaited proposed rule would provide much needed guidance for employers on how to structure employee wellness programs without violating the ADA. Most importantly, the proposed rule addresses the amount of incentives that may be offered under employee wellness programs that are part of group health plans. This amount is generally consistent with HIPAA’s limits on wellness program incentives, although the proposed rule does not fully incorporate HIPAA’s increased incentive limit for tobacco cessation programs.


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Small Group Employers Internal Composite Rating Systems


        Composite Rating for Small Group Employers

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Until guidance is issued, it cannot be known for certain whether setting up an internal composite rating system will comply with federal nondiscrimination rules. An employer that implements a composite rating policy that is later found to be discriminatory faces a penalty of $100 per day, per participant or beneficiary deemed to have been discriminated against.

Yet, the Department of Health and Human Services (HHS) has also signaled in a final rule issued in March 2014 that states could make their own rules on composite rating, subject to HHS approval.

This action, coupled with existing rules addressing discrimination and composite ratings, have allowed some employers to tentatively move forward with different approaches.

Currently, when setting employee contributions, employers have two options:

     1) Set the employee contribution as a percentage of the group premium
     (for example, older employees and smokers could pay more).

     2) Generate a composite rate where each employee’s contribution is the
     same, except for variation due to single coverage and/or family size.

Composite rating is the practice of lumping all eligible employees together and assigning a single rating, regardless of individual factors (such as age, gender or tobacco use) that may make somebody a higher or lower insurance risk. The composite premium is calculated by dividing the total group premium by the number of enrollees to arrive at an average enrollee premium amount.

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Small Group Employers Varied Premium Rate Factors


        Composite Rating for Small Group Employers

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Under the ACA’s reforms, issuers may vary the premium rate charged to a non-grandfathered plan in the individual or small group market from the rate established for that particular plan only based on the following factors:

     Age: The rate can differ up to 3:1 for like individuals of different ages who
     are 21 years and older.

     Family Size: Rates may differ based on whether coverage is for an individual
     or a family.

     Geography: States can establish up to seven geographic rating areas to
     determine the collective health care risk of the residents.

     Tobacco Use: Users of tobacco can be charged rates up to 50 percent higher
     than non-tobacco users.

All other rating factors are prohibited. This means that several factors commonly used by issuers to set higher premiums prior to 2014 (such as health status, claims history, duration of coverage, gender, occupation, small employer size and industry) can no longer be used.

Many employers want to know whether they can determine their own composite rating. However, their authority to do this is unclear at this time, as official guidance from the federal government has yet to be issued.As a result, some issuers no longer determine composite ratings for their group plans.

In response to this, many small employers want to know whether they can determine their own composite rating. However, their authority to do this is unclear at this time, as official guidance from the federal government has yet to be issued.

Composite rating is the practice of lumping all eligible employees together and assigning a single rating, regardless of individual factors (such as age, gender or tobacco use) that may make somebody a higher or lower insurance risk. The composite premium is calculated by dividing the total group premium by the number of enrollees to arrive at an average enrollee premium amount.

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Small Group Employers Composite Rating


        Composite Rating for Small Group Employers

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Long used in group plan health coverage, the Affordable Care Act (ACA) changed how issuers determine a composite rating for their health insurance plans. Under the ACA, some fully insured group health plans will be required to comply with many of the same nondiscrimination rules that previously applied only to self-funded plans. (Note: These rules aren’t currently effective for fully insured plans—they’ve been delayed indefinitely, pending the issuance of regulations.)

Effective for 2014, the ACA also reforms the rating practices of health insurance issuers in the individual and small group markets by limiting the factors that can affect premium rates. These rating restrictions do not apply to grandfathered plans, large group plans or self-funded plans.

In addition, the ACA currently defines a small group market plan, or small employer, as those that employ, on average, up to 100 workers. However, beginning in 2016, states can change this definition to one that employs no more than 50 workers, on average.

Composite rating is the practice of lumping all eligible employees together and assigning a single rating, regardless of individual factors (such as age, gender or tobacco use) that may make somebody a higher or lower insurance risk. The composite premium is calculated by dividing the total group premium by the number of enrollees to arrive at an average enrollee premium amount.

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