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• Lessons From Marietta’s Victory
  
  August 2, 2022
  By: David Ostrowsky In one of last month’s momentous Supreme Court cases, Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., the justices confronted the legal question of whether the health plan covering employees of a small Ohio hospital contained a dialysis carve-out discriminating against participants with end-stage renal dialysis (ESRD). The Court, in a 7-2 decision, ruled that there was no such discrimination because the dialysis carve-out neutrally applied to all outpatient dialysis claims, not just those involving ESRD, and thus did not violate the Medicare Secondary Payer Act (MSP). While the Court’s ruling in favor of Marietta ...
• HHS Proposes Rules for 1557 Covered Entities
  
  August 1, 2022
  HHS Proposes Rules for 1557 Covered Entities to Protect Abortion Rights and Strengthen Protections Against Individuals Based on Sexual Orientation and Gender Identity By: Andrew Silverio, Esq. On July 25, 2022, HHS announced a proposed rule that would strengthen the protections granted by Section 1557 of the ACA in various contexts.  In line with the administration’s previous interpretations of the Supreme Court’s holding in Bostock v. Clayton County, HHS reinforces that 1557’s protections against discrimination based on “sex” extend to sexual orientation and gender identity.  The administration’s desire to protect abortion rights is also clear, with HHS stating that 1557’s ...
• The Forum Redux
  
  July 21, 2022
  After a three-year hiatus, The Phia Forum resumed on July 11th, exclusively geared toward Independent Consultation and Evaluation (“ICE”) clients, many of whom have been using Phia’s health care cost containment services for over two decades. During the two days of events, the first of which occurred at The Phia Group’s new office in Canton, Massachusetts, “ICE” clients enjoyed seminars highlighting enhancements to current services while learning how new developments in healthcare—and American legal landscape— will impact their businesses. In his introduction, CEO Adam V. Russo emphasized Phia’s proactive approach toward providing innovative healthcare cost containment services to countless hardworking ...
• One Lesson We Must All Learn from Dobbs v. Jackson Women's Health Organization
  
  July 14, 2022
  By: Ron E. Peck, Esq. Many – from neighbors to the media – are buzzing about the Dobbs v. Jackson Women's Health Organization decision, handed down by the Supreme Court.  Of course, many (most?) of those people discussing this case might not even know the name of the case; referring to it instead as the “Roe v. Wade” case, or the case that overturned Roe. Regardless of your opinion – both as it relates to the cases (Roe and Dobbs), or abortion in general – one lesson we must take from this recent case, and the fallout that has followed it, ...
• Are You Ready for Transparency in Coverage Compliance?
  
  June 16, 2022
  By: Kaitlyn MacLeod, Esq. Enforcement is almost here for one of the most cumbersome of the Transparency in Coverage obligations. That’s right – plans need to post their Machine-Readable Files on a publicly available website beginning July 1st. Technically, this requirement went into effect on January 1st, but enforcement has been delayed until the summer. Non-grandfathered group health plans must publicly disclose information on in-network provider rates as well as out-of-network allowed amounts and billed charges for covered items and services. This requirement applies to all plan years that begin on or after January 1, 2022. The enforcement date for the third ...
• A Love Letter to Plaintiffs’ Attorneys Everywhere
  
  June 7, 2022
  By: Chris Aguiar, Esq. You know, in the modern information and technological age it is rather easy to forget that we are not in Kansas, anymore, i.e. the 1990s; anything you say or do on the internet can be accessed by the masses, can and will be used against you, and it will never go away. On the same token, it is important to understand the intended audience and perspective of the speaker and even perhaps get to know the person before you judge them based on what I, personally, would consider a (negligent, at worst) throw away phrase. I was ...
• The Baby Formula Shortage and Preventive Care
  
  May 31, 2022
  By: Nick Bonds, Esq. The baby formula shortage in the United States has been worsening for months. Our country’s supply was already squeezed by a perfect storm of pandemic-related supply chain issues and inflation costs. Then, with the detection of dangerous bacteria leading to the sickening and death of several infants, Abbott Nutrition shut down its Michigan plant in February – a plant that formerly supplied nearly one-fifth of all the baby formula in the country. With this plant indefinitely offline, the available supply of formula dwindled even further. In early 2021, the national “out-of-stock” rate of formula on retail shelves ...
• Limits of Arbitration Provisions on Participant ERISA Claims
  
  May 9, 2022
  By: Micah Iberosi-Parnell, Esq. While the leaked Supreme Court opinion overturning Roe v. Wade grabbed all the headlines last week, a recent decision by the U.S. Circuit Court of Appeals for the Sixth Circuit likely has a significant impact on the enforcement of arbitration agreements in ERISA claims and more direct consequences on employers across the country. In Hawkins v. Cintas Corp., an employer, the Cintas Corporation, attempted to enforce the arbitration provisions in the signed employment agreements of two former employees after they alleged Cintas breached its fiduciary duty to the company’s retirement plan under ERISA Sect. 502. The Sixth ...
• Medical Tourism Increases from Abortion Law | The Phia Group
  
  May 3, 2022
  By: Kaitlyn MacLeod, Esq. Many employers have recently been exploring how to add “medical tourism” benefits as a way to guarantee that their employees have access to safe, comprehensive reproductive healthcare. It’s been all over the news – for the first time ever, a first draft of a Supreme Court decision has been leaked, and it appears that the conservative-majority court is set to overrule the longstanding Roe v. Wade and Planned Parenthood v. Casey decisions. The draft opinion is for the Dobbs v. Jackson Women’s Health Organization case, which concerns the Mississippi abortion law that limits availability for abortion procedures ...
• State Law Development: Abortion Restriction | The Phia Group
  
  April 27, 2022
  By: Nicholas Bonds, Esq. The Mississippi abortion ban sits at the center of Dobbs v. Jackson Women’s Health Organization, the case heard by the Supreme Court at the end of 2021, and its 15-week ban on abortions would represent a significant change to the roughly 24 weeks that has been standard for the past 30 years. Established in the Roe v. Wade and Planned Parenthood v. Casey paradigm, the current conservative Supreme Court majority appears poised to either adopt the 15-week framework under the Mississippi law but could potentially overrule rule Roe and Casey altogether. This would essentially leave abortion ...
• The Mess in the American Healthcare System | The Phia Group
  
  April 25, 2022
  By: Chris Aguiar, Esq. It’s easy to get lost in the day to day of our jobs and forget WHY we do what we do. We jump in and out of all of our client’s problems and everything becomes so second nature that you sort of go on cruise control – and then you have a problem yourself and you’re surprised that, well, you’re surprised. I know our healthcare system is a mess, I see examples of it every day – but I never expected it would happen to me … I recently had neck surgery. It took 2 years of seeing ...
• California Law Still Governs Most Surprise Bills
  
  April 14, 2022
  By: Andrew Silverio, Esq. In March, the California Department of Managed Health Care (“DMHC”) issued an “All Plan Letter” (available HERE) describing the relationship between the No Surprises Act (“NSA”) and California’s existing law establishing balance billing protections in various situations.  Followers of our ever-expanding library of content on the NSA will remember that the NSA defers to “specified state law” which meets certain criteria.  Most importantly, this means a state law that provides a method for determining the amount payable under a health plan or insurance policy for a nonparticipating provider or emergency facility. This letter confirms that California’s existing ...
• Texas’ New Pre-Authorization Exemption Law
  
  April 4, 2022
  By: Jon Jablon, Esq. Texas is no stranger to breaking the mold when it comes to enacting laws that impact the health benefit industry. Health plans subject to Texas state law have had to deal with legislation such as the Texas Prompt Pay Act, which needs no introduction for those who’ve dealt with it. In that vein, the state has passed H.B. 3459, which creates pre-authorization exemptions for certain providers, based on the provider’s historical 90%-plus success rate in obtaining approved pre-authorization with a given health plan. To start, it’s important to note that this law would presumably be subject to ...
• Major 9th Circuit Win on Mental Parity | The Phia Group
  
  March 28, 2022
  By: Micah Iberosi-Parnell, Esq. Last week, The Ninth U.S. Circuit Court of Appeals, often known for being more politically liberal than other a federal appeals courts, reversed a landmark decision that required the nation's largest behavioral health insurer to adopt more stringent standards for mental health and substance abuse treatment and reprocess tens of thousands of claims. The Ninth Circuit concluded that United Behavioral Health (UBH) adequately followed plan terms when it denied coverage by self-insured and fully insured employer health plans for residential and outpatient treatment from 2011 to 2017. Plaintiffs alleged that UBH developed Guidelines that were not consistent ...
• Telehealth Coverage & HSA relief for HDHPs | The Phia Group
  
  March 22, 2022
  By: Kaitlyn MacLeod, Esq. The CARES Act temporarily provided the ability for HSA-qualified High Deductible Health Plans (HDHPs) to offer first dollar telehealth benefits, regardless of whether the services were related to COVID-19 or preventive care. This optional allowance only applied to plan years beginning on or before December 31, 2021. Under the CARES Act, if the plan year began on or after January 1, 2022, the telehealth provision would no longer be in effect, meaning that any non-preventive telehealth services provided after that date could not be offered at first dollar. But fear not! The recently passed Consolidated Appropriations Act ...
• Healthcare Cost & How Plans Must Prepare | The Phia Group
  
  March 22, 2022
  Since 2020, the pandemic and health care regulations have dominated the air waves.  The issues that existed prior to 2020 haven’t vanished, however, and they continue to fly under the radar.  In 2022, we anticipate these issues – such as costly medical procedures, devices, and specialty drugs – will be causing serious headaches for plan administrators.  Adding to the perfect storm, stop-loss carriers are looking to protect themselves from what they believe will be a series of expensive years in health care.  Join The Phia Group as we expose these risks, explain what to look for, and provide some ...
• Mental Health Compliance Issues | The Phia Group
  
  March 15, 2022
  By: Nick Bonds, Esq. As 2022 continues chugging along, it’s worth remembering that mental health parity compliance remains a significant issue – not just for health plans, but as a topic of serious discussion for our nation’s leaders. At the end of January, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued their report to Congress, detailing their grave findings on the state of compliance with the requirements of the Mental Health Parity and Addiction Equity Act (MHPAEA). As we’ve discussed previously, the Departments largely found that health plan coverage for mental health and substance ...
• Monetary Relief for Diabetic Americans | The Phia Group
  
  March 14, 2022
  By: Andrew Silverio, Esq. Last month, Georgia Senator Raphael Warnock introduced legislation that would cap the cost of insulin at $35 per month, easing the heavy financial burden on the tens of millions of Americans living with diabetes.  Similar legislation was included as part of the Build Back Better plan, but Democrats hope to be able to pass the standalone measure, which Chuck Schumer claims has bipartisan support in the Senate. The bill itself, which can be found at https://www.congress.gov/bill/117th-congress/house-bill/6833/text?r=78&s=1, would cap individuals’ cost-sharing for insulin products at $35 for a 30-day supply under group health and Medicare plans, which are ...
• Traditional Insurance to Self-Funded Plan | The Phia Group
  
  March 4, 2022
  By: Ron E. Peck, Esq. As the cost of providing health benefits to employees and their families continues to increase, employers must face a difficult decision.  Do they reduce the quality of the plan they offer (increasing co-pays, deductibles, and premiums, while narrowing the scope of what is covered)?  Do they stop offering health benefits, pay a penalty if one applies, and hope their employees secure adequate coverage through a spouse, an exchange plan, Medicare or Medicaid?  Or, do they revisit the type of plan they offer – moving from a traditional fully insured model, to a self-funded plan? For many, ...
• MHPAEA Self-Funded Plans and NQTL Analysis | The Phia Group
  
  February 22, 2022
  By: Jon Jablon, Esq. For most of the industry, the acronym “NQTL” has become a bit of a four-letter word. From the annoyance of the additional compliance burden itself to the resources needed to satisfy the requirements, we’re all feeling the sting of the new requirement to analyze and document a given health plan’s NQTL parity. (As a very brief recap, an NQTL is a nonquantitative treatment limitation, or a non-numerical difference between a limitation placed on the average medical or surgical benefit versus a comparable average mental health or substance abuse disorder benefit. Aptly, the relevant law is called ...
• Empowering Plans: P129 – Over-The-Counter COVID Testing
  
  February 18, 2022
  On this week’s episode of Empowering Plans, Kelly Dempsey and Kevin Brady discuss over-the-counter COVID testing and the complications surrounding up-front payment by participants with account-based plans (HSA, FSA, HRA). Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• Challenging Changes for Prudent Plan Fiduciary | Phia Group
  
  February 18, 2022
  By: Kaitlyn MacLeod, Esq. Being a Plan fiduciary carries a lot of responsibility and potential risk for liability – even more so now thanks to a recent retirement fund ERISA case, Hughes v. Northwestern University. Even though the Hughes case dealt with retirement funds, this case has significant implications for plan sponsors of self-funded health plans under ERISA. The Hughes case concerned retirement plans offered by Northwestern University and the suit was filed against the plan’s fiduciaries for violating their duty of prudence in the selection and management of investment options and paying excessive recordkeeping fees. The university provided a range ...
• The ERISA Compliance Landscape for 2022 | The Phia Group
  
  February 15, 2022
  One month in, the new year has brought into focus three major compliance concerns – mental health parity, COVID-19, and fiduciary duties. The Department of Labor just released its first annual report to Congress on mental health parity compliance. None of the plan sponsors in the report earned a passing grade. Join The Phia Group as they break down the report, explaining what went wrong, and what plan sponsors can do to earn a passing grade. The team will also reveal how you can best prepare a compliance strategy to keep up with new legal developments in ERISA law ...
• New Frontier Fighting for Abortion Rights | The Phia Group
  
  February 11, 2022
  By: Micah Iberosi-Parnell, Esq. As many Americans probably know already, 2021 was a landmark year in the political battle over abortion rights. The Supreme Court heard two cases last term:  Dobbs v. Jackson Women’s Health Organization, debating a Mississippi law crafted specifically to challenge Roe v. Wade; and Whole Woman’s Health v. Jackson, challenging the highly-publicized Texas law that bans abortion after six weeks and incentivizes private citizens to report abortion health providers to state authorities. If the Supreme Court’s six-justice conservative majority sides with the state defendants in either case, as several justices hinted during oral arguments, it would ...
• Empowering Plans: P128 – The Comparative Analysis: A Year in the Life
  
  February 3, 2022
  February 10 marks a full year since the requirement to provide a written report document a plan’s comparative analysis of its NQTLs took effect. In today’s podcast, Jon Jablon and Nick Bonds discuss some of what they’ve learned from a year’s worth of analyzing NQTLs, some practical considerations for health plans, and their takeaways from the recently-published report on MHPAEA compliance from the DOL, HHS, and Treasury. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• All the COVID Things - COVID As a Disability & More Paid COVID Leave
  
  January 31, 2022
  By: Kelly Dempsey, Esq. With all the NSA, NQTL, and OTC testing rules and talk, it’s possible you may have missed that the EEOC has published a bunch of guidance and FAQs discussing COVID-19 as a disability under the ADA. You may recall from prior blogs and articles I’ve written that I have a friend that has long-COVID, making this a topic I’m very passionate about. She is a long hauler who suffers from chronic fatigue, “brain fog,” dizziness on standing, and migraines just to name a few daily symptoms (she also still can’t smell or taste normally). Like any ...
• Don’t Forget About Third-Party Liability When Dealing with COVID-19 Claims
  
  January 28, 2022
  By: Andrew Silverio, Esq. Entering year three of this pandemic with no clear end in sight, there is still a good deal of uncertainty surrounding who should ultimately be responsible for the expense of some COVID-19 treatment.  Followers of our social media and webinars will be somewhat familiar with some of the developments in the workers’ compensation realm.  Various states have passed laws establishing COVID-19 as a potential occupational injury, some focusing on first responders and healthcare workers and others doing so more broadly. However, case law is also developing in the more general areas of negligence and wrongful death.  Recently, ...
• The DOL wants to Reduce Stigma and Raise Awareness: Why Your Plan Needs to Be Concerned about Mental Health Parity
  
  January 25, 2022
  By: Kaitlyn MacLeod, Esq. The DOL has just released the long anticipated MHPAEA Report to Congress, outlining the key enforcement results for this past year relating to the NQTL Comparative Analysis requirement under the Consolidated Appropriations Act (CAA) of 2021. Under the CAA, Congress gave the DOL an important new enforcement tool by requiring plans and issuers to provide comparative analyses of their NQTLs upon request and authorize the DOL to determine whether those NQTLs are in compliance. As part of the CAA requirements, the DOL is required to submit an annual report to Congress on compliance by group health plans ...
• The Tax Man is Dead; Long Live the Health Plan!
  
  January 21, 2022
  By: Ron E. Peck, Esq. People (especially politicians) refer to “healthcare,” when in fact they are referencing health insurance.  When they talk about the cost of healthcare, they don’t mean how much a provider charges for the care they provide.  Instead, they are referring to the premiums, co-pays, and deductibles for which the patient will be responsible out-of-pocket. Those aren’t the costs of healthcare; they are the costs of health insurance.  Health insurance isn’t healthcare; it’s one way by which we pay for healthcare. Call it a scapegoat, or something else, but it has been too easy to say that what’s wrong ...
• Empowering Plans: P127 – What is Required for Plans for OTC COVID-19 Testing Coverage?
  
  January 20, 2022
  This week on Empowering Plans, Jen McCormick and Katie MacLeod discuss the controversial new OTC COVID-19 Testing coverage requirement that went into effect on January 15, 2022 for plans – how it interacts with other COVID-19 coverage requirements, what plans need to cover and available safe harbors, and how plans can be prepared for compliance. This won’t be the last you hear of this topic, plans should not delay in getting their action plan and policies in place. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• Reasons for the Value-Based Care Gap Between Public Payers and Employer Groups
  
  January 10, 2022
  By: Micah D. Iberosi-Parnell, Esq.   The long-term struggle over the price of health care services between providers and payers is a tale as old as time. On one side, providers want to preserve the status quo, fee-for-service payment (FFS) system, which often leads to unnecessary treatment and wasteful health care spending. Meanwhile, payers have consistently pushed new payment models that attempt to tie spending with results. Collectively, the models pushed forward by payers are often referred to as “value-based care” (VBC) or “alternative payment models.” New survey data shows a growing gap between the success of Medicare and employer-based group ...
• Don’t Swear Off MHPAEA Compliance for the New Year
  
  December 29, 2021
  By: Kaitlyn MacLeod, Esq. Mental Health Parity continues to be a priority for DOL compliance – and should be on every plan’s wish list this Holiday Season to have in case the DOL or a plan participant requests for a copy of the plan’s mental health parity comparative analysis. As background, the goal of the MHPAEA is to ensure group health plans and health insurers do not provide less favorable mental health/substance use disorder (MH/SUD) coverage than they do medical/surgical (M/S) coverage.  To ensure that plans subject to the MHPAEA maintain parity concerning Non-Quantitative Treatment Limitations (NQTL), all processes, strategies, evidentiary ...
• Battling Vaccine Hesitancy with Financial Incentives
  
  December 27, 2021
  By: Andrew Silverio, Esq. With a troubling portion of Americans still unwilling to protect themselves and others against COVID-19, many employers are looking at ways to both protect themselves from the expenses associated with COVID-19 infection amongst the unvaccinated and incentivize hesitant workers to get vaccinated by creating financial incentives. Followers of The Phia Group’s webinars and social media will already be somewhat familiar with common health plan-based approaches.  Most notably, plan sponsors can set up wellness programs to create differentials in health plan contributions based on vaccination status without running afoul of HIPAA requirements.  These are subject to the same ...
• Roe v. Wade/Planned Parenthood v. Casey
  
  December 21, 2021
  By: David Ostrowsky Over the past few weeks, in light of the Supreme Court case Dobbs v. Jackson Women’s Health Organization, hearing arguments over Mississippi seeking to ban abortions after fifteen weeks of pregnancy, the landmark 1973 Roe v. Wade case has come to the forefront of our attention. For the sake of understanding historical context, the following is a brief background to the case that laid the groundwork for the current Supreme Court precedent on abortion rights … and may get overturned by the summer. For one, there was no actual person named “Roe.” There was, however, a young ...
• The Fear Group
  
  December 17, 2021
  By: Ron E. Peck I remember many years ago, we received a check payable to “The Fear Group.”  Of course, we quickly realized that the person who issued said payment must have first communicated via the phone with one of our thickly Boston-accented associates.  At the time, I thought it was funny.  Now, I am truly afraid, and fear is no longer a laughing matter. Why am I afraid?  I believe we are at a tipping point in the American health system.  Yes, I said “health system.”  For those that know me, I don’t confuse health insurance with health benefits with ...
• Stop-Loss “Gaps”: Level Funding Is Far From Immune
  
  December 6, 2021
  By: Jon Jablon, Esq. Level-funding is a method for self-funded plans to effectively cap their monthly expenditures. It usually entails reinsurance with an aggregate deductible only, and it relies on the notion that the carrier will reimburse the employer for plan benefits paid above the aggregate deductible, most often on a monthly basis, and usually including advanced funding. That sounds fantastic from a risk perspective; the ability to cap monthly claims expenses at a predetermined level can eliminate the high aggregate claims risk inherent in self-funding! Something that isn’t usually part of the discussion, however, is that a level-funded program entails ...
• What Kind of [Month] Has it Been?
  
  December 2, 2021
  By: Nick Bonds, Esq.   As we approach the new year, let’s take a moment to pause and reflect on the whirlwind of policies, proposals, and issues swirling in the end-of-2021 zeitgeist as we brace for 2022. So, where to begin…   First: one of the biggest healthcare issues to come before the Supreme Court this year are two cases challenging state laws significantly limiting access to abortion. Abortion restrictions in Texas and Mississippi are two of the most direct challenges to the Roe v. Wade-Planned Parenthood v. Casey framework that has been in place for decades. We’ve already written a fair ...
• Act Now, Plan Ahead – The 2021 Endgame and 2022 Outlook
  
  November 16, 2021
  Renewal season is in full swing, and 2022 will be here before you know it. Are you confident that you have done everything you need to do to close out 2021 on a high note, and enter 2022 on the right foot? Join The Phia Group as they discuss what must be done now to finish 2021 strong, as well as forecast what to expect in 2022. The Phia Group’s unrivaled access to data, industry developments, and ongoing analysis has allowed us to identify what to expect and how to prepare. From the No Surprises Act and transparency, to ...
• Empowering Plans: P122 – COVID-19 Vaccine Mandate Update
  
  November 12, 2021
  This week on Empowering Plans, Kelly Dempsey and Kevin Brady discuss the controversial OSHA vaccine mandate rules – where they started, where they stand now, and the many legal challenges that have arisen. This won’t be the last you hear of this topic and despite the legal challenges, employers should not delay in getting their action plan and policies in place. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• Empowering Plans: P121 – Transplants: The Future is Now!
  
  October 29, 2021
  This week on Empowering Plans, Nick Bonds and Jon Jablon discuss a highly nuanced topic that has been the bane of many health plans: organ transplants. From interspecies organ transplantation to COVID’s effect on the global organ trade, it’s an evolving topic with serious implications on healthcare. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• The NBA Health Care Scandal
  
  October 28, 2021
  By: David Ostrowsky One person submitted paperwork for $48,000 worth of root canals and crowns on eight teeth at a Beverly Hills dental office--while he was living in Taiwan. Another individual filed a $19,000 claim for chiropractic services that he (allegedly) never received. And then there were suspicious invoices, filled in with (again, allegedly) fraudulent dates and account numbers, one of which was filed for services in a "wellness office" that specialized in "sexual health, anti-aging, and general well-being."  We are talking about the recent multi-million-dollar health care fraud scheme in which eighteen former NBA players were charged with pocketing funds illegally ...
• The Needle of Damocles: OSHA’s Anticipated Vaccine Rules
  
  October 27, 2021
  By: Nick Bonds, Esq. At the beginning of this month, President Biden took a step he’d previously been reluctant to take – imposing new vaccine rules on federal workers and contractors, health care workers, and large employers. Widely characterized as a “vaccine mandate,” the rules are actually not quite a mandate for private employers. Under President Biden’s “Path Out of the Pandemic,” the Department of Labor (DOL) is tasked with developing a rule requiring employers with 100 or more employees to ensure their employees are either 1) vaccinated, or 2) can produce a weekly negative COVID test result. Even ...
• A Teaser! A Rose by Any Other Name…
  
  October 15, 2021
  By: Ron E. Peck, Esq. I am very excited to let you know that my recent article, regarding the No Surprises Act and its impact on appeals and disputes, will be published in the upcoming issue of The Self-Insurer magazine, published by the Self-Insurance Institute of America (“SIIA”).  Here I provide you with an overview of the topic that will be discussed, why this is so important, and how it all impacts our own Plan Appointed Claim Evaluator (“PACE”) service. One upon a time, if a plan beneficiary felt their claim was underpaid – either fully denied, or partially paid – ...
• Empowering Plans: P120 – To Appeal, or not to Appeal
  
  October 15, 2021
  Join The Phia Group’s CLO, Ron Peck, and SVP of Consulting, Jen McCormick, as they dissect the No Surprises Act and reveal how and why there will be confusion regarding what constitutes a basis for appeal, and what should be disputed per the NSA.  This, along with updates on the cost of COVID testing, mandatory vaccine orders, and more are in store with this episode of Empowering Plans! Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• Empowering Plans: P119 - Workers' Compensation & COVID-19 Claims
  
  September 30, 2021
  In this episode of Empowering Plans, Attorneys Rebekah McGuire-Dye and Cindy Merrell, discuss how current Workers’ Compensation regulations impact health plans, and who is responsible for employee’s Covid-19 related claims. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• Dialysis Carve-Outs and Network Contracts: Like Oil and Water
  
  September 30, 2021
  By: Jon Jablon, Esq. It’s renewal season once again, and you know what that means: time for health plans to make decisions about vendors, pay ment models, and other things that help contain costs while maintaining robust benefits! One important choice that plans need to make is about dialysis. Specifically, when the plan uses a PPO network to price and pay claims, what does that mean for dialysis claims, which are of course some of the most expensive and marked-up claims of them all? Many plans choose to go the rough of “carving out” dialysis claims, or paying them at a ...
• Stories from the Front Lines – A Collection of Recent Relevant Case Studies & COVID-19 Vaccine Mandate
  
  September 21, 2021
  It has been said that failure is often the greatest teacher.  This is true both for the one that failed, as well as those who learn from others’ experiences.  Join The Phia Group as they share cautionary tales meant to enlighten, and ensure you don’t make the same mistakes or fall into the same traps.  From mishandled appeals to fiduciary breach; misapplication of plan terms to compliance violations; dubious provider billing schemes to abusive treatment facilities; by witnessing others’ unfortunate experiences (and hearing how The Phia Group responded), you will be better prepared when similar issues affect you.  Don’t ...
• Covid-19 Vaccine Boosters – Are they Ethical?
  
  September 17, 2021
  By: Andrew Silverio, Esq. Throughout the day, the FDA will be discussing whether the general American public should start getting COVID-19 vaccine booster doses.  This will include presentations from Pfizer, who has been pushing for booster shots across the general population, but the FDA will provide its own interpretation of available data as well.  Even before any guidance from the FDA, Dr. Fauci and the NIH have been advocating for booster doses for months. However, with a third and arguably less crucial dose being contemplated for wide swaths of healthy people in the general population, many, even accepting that a booster ...
• Biden Administration Announces Sweeping New Vaccine Mandates
  
  September 10, 2021
  By: Kevin Brady, Esq. On September 9, 2021, President Biden announced his COVID-19 Action Plan, which seeks to impose new vaccine mandates on federal employees, health care workers at Medicare and Medicaid participating hospitals, and private sector employees. Federal Employees President Biden signed an executive order which requires all federal government employees (as well as employees of contractors who do business with the federal government) to be vaccinated. Importantly, federal employees will no longer have the option to do regular testing in lieu of the vaccine. Federal employees now have 75 days to be vaccinated or they risk losing their jobs. Healthcare ...
• Empowering Plans: P117 – Boost Your COVID-19 Vaccine Knowledge
  
  September 1, 2021
  This week on Empowering Plans, there are important COVID-19 vaccine updates to discuss. Pfizer’s vaccine was granted full FDA approval, booster shots are coming, and employers are debating whether and how to implement premium penalties for the unvaccinated. What do employers and their plans need to know? Join Attorneys Brady Bizarro and Kelly Dempsey as they break it all down for you. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• The Status of Major Legal Challenges to the ACA
  
  August 25, 2021
  By: Micah Iberosi-Parnell On June 17, 2021, the Supreme Court dismissed the latest challenge to the Affordable Care Act (“ACA”) in a 7-2 decision. The seven justices in the majority decided that Texas and seventeen other plaintiff states failed to show they were injured, so they had no basis to pursue a case in federal court. The case, called California v. Texas, threatened to upend the ACA and potentially leave up to 31 million Americans at risk of losing health insurance coverage. The eighteen plaintiff states had argued that the entire ACA was rendered unconstitutional after Congress lowered the tax penalty for individuals ...
• A Failure to Communicate
  
  August 13, 2021
  By: Ron E. Peck One of my favorite sayings is, “a penny wise and a pound foolish.”  Too often, people and organizations are too quick to act on a short-term desire and fail to contemplate the long-term impact. Consider, as an example, COVID-19 and the vaccines.   When the vaccines were first made available to the public, there was a desire to get as many people vaccinated as quickly as possible.  Unfortunately, many entities in control of general communication disseminated messaging that suggested the vaccine “prevents” people from contracting COVID-19.  While it was true that is seriously reduced the likelihood that you ...
• Empowering Plans: P115 – A Lightning Round of Healthcare Updates
  
  August 6, 2021
  In this episode of Empowering Plans, Attorneys Nick Bonds and Brady Bizarro, discuss a number of healthcare topics to keep you updated on the latest topics buzzing around the industry. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and Apple Podcasts Channels!)
• Canadian Drug Importation – Back on Track (but not for everyone)
  
  July 19, 2021
  By: Andrew Silverio, Esq. With a few lines tucked into a July 09, 2021 executive order, the Biden administration clarified what had recently become a murky outlook on the future of fully legal foreign drug importation programs. Initially, a July 2020 Trump executive order directed HHS to develop regulations under which states, Indian tribes, “and in certain future circumstances pharmacists and wholesalers” could develop and submit foreign drug importation programs for approval.  The regulations in question appeared on September 24, 2020, and states quickly began developing and submitting plans for approval.  However, to date, none have been approved. For the states, ...
• Empowering Plans: P112 – Healthcare Subrogation, The Comeback! Post-Covid Edition
  
  June 25, 2021
  Subrogation Attorneys Cindy Merrell and Maribel Echeverry McLaughlin discuss healthcare subrogation in the post-Covid environment, and the difficulties faced during the international pandemic. What can Plans expect now that the courts are reopening, and drivers are back on the roads, and how Plans can assist in getting higher recovery numbers. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)
• Good to Be Back
  
  June 10, 2021
  By: Ron E. Peck, Esq. Regardless of whether you are an employer, or service employers, or both (like The Phia Group), one question keeps popping up.  As restrictions are lifted in each State, people find themselves emerging from their basement offices.  This, then, begs the question amongst employers: “When do we have employees return to the office?  What can we do to incentivize them to return to the office?  Can we force them to return to the office?”   The other day, my five-year-old son was enjoying some mini-muffins, sitting comfortably on the kitchen floor.  As crumbs rained down from his mouth ...
• MHPAEA Compliance: The Dreaded NQTL Analysis
  
  June 1, 2021
  By: Jon Jablon, Esq. The Mental Health Parity and Addiction Equity Act (or MHPAEA) now requires health plans to “show their work” and perform a comprehensive NQTL analysis of the health plan itself. That sentence means different things to different people; many, including me, groan from the general lack of regulatory guidance and somewhat vague rules regarding what the analysis entails. We know the basics, sure, but that’s sort of all we’ve been told. At a high level, the MHPAEA does not require health plans to cover treatment for mental health or substance abuse disorders. If the health plan does ...
• The Light at the End of the COVID Tunnel – Pandemic Fallout and Permanent Changes
  
  May 24, 2021
  As we turn the page on the COVID-19 pandemic and witness a gradual return to normalcy, we – as both members of the health benefits industry, and employers – must assess the fallout, and determine which changes are temporary, and which aren’t going anywhere.  From how we seek and deliver healthcare to rules controlling how we pay for it, join The Phia Group’s team on Tuesday, May 25, 2021, at 1:00 PM EST, as they discuss pandemic era regulations – such as ARPA and the American Families Plan, analyze employer “return to work” policies, as well as predict how ...
• The Supreme Court Takes Up Abortion Rights Once Again
  
  May 24, 2021
  By: Nick Bonds, Esq. The current lineup on the Supreme Court’s bench leaves it with a six-justice conservative majority, meaning the cases it takes up will almost certainly move American jurisprudence decidedly to the right. This shift is visible in not merely the opinions this majority writes, but also in the types of cases the Court decides to hear. It only takes four justices to agree to hear a case, and conservative legal activists sense an opportunity to push the envelope in their favor. The Court has now agreed to hear in their next term two cases emblematic of this ...
• Empowering Plans: P109 – The Unanticipated Costs of COVID-19 Testing
  
  May 14, 2021
  In this episode of Empowering Plans, Kelly Dempsey and Kevin Brady, revisit a subject quite popular at the beginning of the pandemic; testing for COVID-19. Plan members don’t have to pay for COVID-19 tests, but group health plans do. Unfortunately, there are no limits in place on how much the plan has to pay for those tests. Listen to this week’s episode to hear about the current state of pricing for these tests, and how we see things shaping up moving forward! Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes ...
• HHS Resolves the Conflict – Sex Discrimination Includes Sexual Orientation and Gender Identity
  
  May 11, 2021
  By: Andrew Silverio, Esq. Recently, HHS resolved a conflict which arose last year between the position of the Office for Civil Rights (OCR) and the Supreme Court decision Bostock v. Clayton County.  This new interpretation reverses the position outlined in HHS’s June 12, 2020 final rule that Section 1557’s nondiscrimination protections did not include protections based on gender identity or sexual orientation, and brings the position of OCR into accord with Bostock in holding that protection under Section 1557 does indeed extend these protections. Notably, HHS stresses in the release (available at https://www.hhs.gov/sites/default/files/ocr-bostock-notification.pdf) that it will comply with the Religious Freedom ...
• The New Normal… Same as the Old Normal?
  
  May 10, 2021
  By: Ron E. Peck, Esq. We are already almost halfway through 2021; can you believe it?  Throughout 2020, I recall many people (myself included) desperately looking forward to a better 2021.  We all convinced ourselves that 2021 would result in an instantaneous return to a pre-COVID way of life.  More than five months into 2021, however, and we are still enduring many restrictions (though far fewer than this time last year).  That being said, while a return to normalcy didn’t take place overnight, things are certainly improving.  This, then, causes me to wonder – which changes are tattooed to ...
• Empowering Plans: P107 – Updates Employers Need to Know About the COVID-19 Vaccines
  
  April 30, 2021
  As COVID-19 infection rates appear to be trending downwards in most areas in the U.S., employers across the country are hard at work on reopening plans in anticipation of the lifting of most occupancy limitations to slow the spread of the virus. The big question employers are asking themselves is whether to mandate COVID-19 vaccinations for employees returning to the workplace to ensure a safe work environment. Phil and Brady take a deep dive into this issue discussing compliance considerations implicated when considering mandating vaccination as we as explore limitations, risks, and current trends being established by employers that ...
• Revisiting PPO Contracts & Stop-Loss Gaps
  
  April 26, 2021
  By: Jon Jablon, Esq. There’s no question that stop-loss insurance is important – or, more likely, absolutely necessary – for the viability of a self-funded health plan. As helpful as this measure of protection can be, however, it is not without certain risks. One such risk comes in the form of the potential for denials; it is insurance, after all. There are many potential “gaps” in coverage (where a health plan is required to pay a certain amount but the stop-loss carrier is not required to reimburse that entire amount), and one of the most prevalent tends to be ...
• Doe v. United Behavioral Health – A Fiduciary Twist
  
  April 9, 2021
  By: Andrew Silverio, Esq. On March 5, 2021, the northern district of California came down with a decision that is causing some justifiable concern among TPAs in California and beyond.  The root of the dispute is a self-funded plan’s application of its exclusion for Applied Behavioral Analysis (“ABA”) therapy for treatment of autism, but notably, the lawsuit is brought not against the employer or plan, but against United Behavioral Health and United Healthcare Services, the plan’s claims administrator (collectively “United.”) The interesting conversation here revolves around the question of whether United, by applying the plain language of the plan in enforcing ...
• Empowering Plans: P105 – The Mystery Surrounding COVID-19 Long Haulers: Employment & Benefit Considerations
  
  April 6, 2021
  Legal Compliance & Regulatory Affairs Consultant, Phil Qualo, and Vice President of Consulting, Kelly Dempsey Esq., explore the phenomena surrounding COVID-19 long haulers. Although the term “long haulers” trigger thoughts of cross country truck driving, it has actually been used as a common reference to people who have been infected with the COVID-19 virus and have not fully recovered for weeks, months, and even up to a year after first experiencing symptoms. This episode provides personal insight into the challenges that these long haulers are facing that impact both employer and benefit considerations, including access to disability benefits and ...
• Here for the Long Haul – Are Employers and Plans Ready?
  
  April 6, 2021
  By: Kelly Dempsey, Esq. Change that creates challenge is nothing new for the self-funded industry, which is why the amount of changes that have been required to address COVID-19 are not a shock to our industry. But now that we’re over a year into a global pandemic, the long-term consequences are only beginning to come to the surface. To date the focus has been on prevention and vaccines, but do you know what a long hauler is? No, not a truck driver, a COVID long hauler: individuals who are not recovered from COVID-19 weeks and even months after the ...
• Fallout in the Spring – COVID Claim Disputes, Surprise Billing RBP Opportunities & Return to Work Vaccine Mandates
  
  March 24, 2021
  The costs and conflicts ushered in by the COVID-19 fallout are becoming more apparent. Industry members are debating numerous issues, such as when a plan should pay and whether workers’ compensation should be a primary payer. Both opportunities and challenges appear, especially for fiduciaries, from post-pandemic legislation, such as the No Surprises Act, to state and federal COVID-19 rules – impacting Reference Based Pricing and claims processing in general.  Join The Phia Group as we discuss post-COVID era regulations applicable to benefit plans, as well as industry issues emerging from this new chapter in the pandemic saga. Click Here to View ...
• No Surprises Act & “Plan Websites”
  
  March 19, 2021
  By: Jon Jablon, Esq.   Our consulting team recently fielded a great question, which is worth mentioning here. The text of the law provides that health plans:   …”must have a database on the public website of such plan or issuer that contains (a) a list of each health care provider and health care facility with which such plan or issuer has a direct or indirect contractual relationship for furnishing items and services under such plan or coverage; and (b) provider directory information with respect to each such provider and facility.”   Our client’s question was whether the plan itself had to host the ...
• Empowering Plans: P104 – COVID-19 Vaccine Candidates – Vaccinating Vulnerable Populations
  
  March 17, 2021
  In this episode of Empowering Plans, Jen McCormick and Andi Goodman discuss the future of vaccinating vulnerable populations such as pregnant women and children, and the importance of vaccinating children in achieving herd immunity. What are the next steps for expanding vaccine eligibility? What do employers need to know if they are considering requiring their staff to get vaccinated before returning to work? Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)
• A COBRA Conundrum
  
  March 15, 2021
  By: Nick Bonds, Esq.   COBRA continuation coverage has never been what I would call “intuitive.” Even under the most straightforward of circumstances, COBRA involves a byzantine labyrinth of rules and timelines, for employers and beneficiaries alike. In the time of coronavirus, COBRA has only grown in its complexity. Recent rules make those timelines more difficult to follow and the coverage more complex to administer. Though these new rules should make more accessible to employees than ever, the COBRA headaches for employers may never have been more intense.   In the “before times,” COBRA coverage was somewhat more straightforward – complicated, ...
• EBSA Provides Clarification and Sows Confusion with Outbreak Period Guidance
  
  March 8, 2021
  By: Andrew Silverio, Esq. On Friday, February 26, the EBSA released its Disaster Relief Notice 2021-01 (available at https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/disaster-relief/ebsa-disaster-relief-notice-2021-01), addressing a conflict that many commentators had already picked up on – the fact that previous relief (see https://www.federalregister.gov/documents/2020/05/04/2020-09399/extension-of-certain-timeframes-for-employee-benefit-plans-participants-and-beneficiaries-affected#footnote-2-p26352) provided for the tolling of various timelines under health plans during the “outbreak period”, which is now over a year old and still ongoing, but the authority on which that relief relies expressly limits any such tolling to one year.  Because of this conflict, many commentators had concluded that this must mean that the “outbreak period” ends as of February 28, ...
• So the Outbreak Period Ended?
  
  March 2, 2021
  By: Kelly Dempsey, Esq. In case you haven’t heard, the Employee Benefits Security Administration (EBSA) released Disaster Relief Notice 2021-01 on Friday, February 26th to address statutory language in section 518 of Employee Retirement Income Security Act of 19745 (ERISA) and section 7508A(b) of the Internal Review Code (the Code). In plain English, the statutes place a one year limit on the authority originally used to create the “Outbreak Period” – meaning by statute, the tolling of timeframes cannot exceed one year. Since Friday, Phia has received a large amount of questions related to this Notice and what it ...
• DON’T PANIC – Mental Health Parity Compliance Expanded
  
  February 8, 2021
  By: Nick Bonds, Esq. Among the compliance headaches nestled within the Consolidated Appropriations Act, 2021 (“CAA”), few have inspired more anxiety than Sec. 203 “Strengthening Parity in Mental Health and Substance Use Disorder Benefits.” With such little guidance and the shockingly early effective date (February 10, 2021), many self-funded groups are understandably alarmed that this CAA expansion of mental health parity compliance will get them in hot water with the DOL or HHS. Granted, depending on the design of the health plan in question, and the types of limitations the group has imposed on their MH/SUD benefits, conducting and ...
• HIPAA Compliance Audits – Good News and Bad News
  
  February 1, 2021
  By: Andrew Silverio, Esq. In December 2020, the Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) released the findings of an extensive audit of Covered Entities and Business Associates, performed in 2016 and 2017 for compliance with various HIPAA requirements.  This data, available at https://www.hhs.gov/sites/default/files/hipaa-audits-industry-report.pdf, provides valuable insight into what Covered Entities are doing right, and what they’re doing wrong, when it comes to HIPAA compliance (of the Covered Entities audited, 90% were health care providers, 9% were health plans, and 1% were health care clearinghouses). Rather than a general audit for compliance with all ...
• The Hefty Price Tag of Covid-Related Substance Abuse Disorders
  
  January 27, 2021
  By: Philip Qualo, J.D. Life as we know it came to a halt in February of last year due to the quick and vicious spread of the COVID-19 virus. Although the US has made significant strides in slowing the spread, and pharmaceutical companies have manufactured vaccines, employees across the country continue to struggle with the realities of working from home. Whether due to stress associated with juggling work and family within an eight-hour workday at the kitchen table, or the inherent loneliness of performing job functions without peers or colleagues to interact with, working remotely and isolation orders have ...
• The “No Surprises Act,” COVID Relief, and Plan Design Changes Impacting Your Business in 2021
  
  January 20, 2021
  After a hectic political showdown, the president has signed legislation which includes comprehensive protection from surprise medical billing. This 5,000-page bill, along with a raging pandemic and a new administration, is certain to have our industry scrambling to keep up. Join The Phia Group in a new webinar format as they discuss the COVID-19 relief bill, the impact on the industry, and everything in between. From plan design changes to updates on fiduciary duties and subrogation, we have got you covered as we ring in the New Year. Following the one-hour webinar, there will be two 30-minute breakout sessions, ...
• Resolution to Become an Educated Consumer of Healthcare
  
  January 14, 2021
  By: Bryan M. Dunton Many people use the beginning of a new year as a reason to better themselves physically and emotionally, often setting goals for themselves in the process. After the pandemic of 2020 altering everyone’s plans, there’s sure to be a renewed dedication to personal goals this year. When deciding what types of personal goals to accomplish, it is important to ask yourself why these specific things are so important to you. Why do you want this change? How will it help you emotionally or physically? What’s stopping you from achieving it and how can you move beyond ...
• Addition By Division
  
  January 11, 2021
  By: Jon Jablon, Esq. Business is complicated, and a recent consulting inquiry from a client recently reminded me just how complicated it can be, especially when health plans are involved. In the course of a given health plan’s lifespan, there is the potential for numerous different things to happen, and one such possibility is called a “spinoff”, which is the term used when one benefit plan is split into more than one benefit plan. When a health plan “spins off” into two health plans, neither plan is considered an “original” or “existing” plan, but each plan effectively becomes a brand ...
• Choose Your Own Adventure: President Biden’s Healthcare Agenda
  
  January 5, 2021
  By: Nick Bonds, Esq. Does anyone else have fond memories of the choose your own adventure genre? “To explore the lab, turn to page 34!” Remember those? My favorite were the Goosebumps stories. I distinctly remember a story where I survived, but was transfigured into a German Shepherd. Thinking back, I probably wouldn’t have minded. I made a point of going through the first read without knowing any of the possible outcomes. After that though, I would inevitably flip back and forth through the book to see every possible outcome from every possible decision tree. In that spirit, let’s take ...
• I Hate Surprises!
  
  December 22, 2020
  By: Ron E. Peck As a member of the health benefits community, I – like many of you – have heard about the proposed “No Surprises Act.”  Many representatives of our health insurance and benefits community have reached out to me asking whether this “new law” will make balance billing “illegal,” and thus enable plans to leave their networks behind and pay claims solely based upon a Reference Based Pricing (“RBP”) methodology. Before we dive into what the No Surprises Act is (and isn’t), let’s first – as of the time this missive is being drafted – recognize that it is ...
• FFCRA Leave Entitlements Set to Expire December 31, 2020
  
  December 16, 2020
  By: Kevin Brady   In March of this year, the President signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA represents the first major legislative response to the COVID-19 pandemic. In an effort to reduce the spread of COVID-19 and to protect the financial interests of those employees and families who are impacted by the COVID-19 pandemic, the FFCRA provides new and expanded leave entitlements under the Expanded Family and Medical Leave Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA).   The EFMLA provides additional leave entitlements to employees who must take time off because they are unable ...
• The U&C Gap Keeps Rearing Its Ugly Head
  
  December 8, 2020
  By: Jon Jablon, Esq. There’s no question that most health plans can’t remain viable without a stop-loss policy in place. The plan and stop-loss carrier share a common goal, which of course is cost-containment. Since the two types of coverage provided are so different, however, the brand of cost-containment that each uses is often vastly different – and when two companies are trying to contain costs on the same claims, things can get ugly if they say different things. Many stop-loss carriers have antiquated notions of what should constitute U&C. Common definitions include the old “usual charge in the area” ...
• There is no Such Thing as a 1099 Employee
  
  November 23, 2020
  By: Andrew Silverio, Esq. We couldn’t possibly count the number of inquiries we have received over the years about extending coverage to “1099 Employees” under a self-funded ERISA health plan.  So, it seems like a good idea to lay out some important concepts and issues that arise when discussing coverage under an ERISA plan for independent contractors.  First, there is no such thing as a “1099 employee”.  A 1099 worker is an independent contractor, which is by definition not an employee.  This may seem like a distinction which is relatively meaningless and semantic, but the difference has significant practical ...
• The Dangers of Politicizing Health
  
  November 16, 2020
  By: Ron E. Peck As I – like so many others – anxiously watched election day results on television, a commercial played more than once.  The advertisement displayed a mask (not a fun Halloween mask, but rather, one of the protective masks with which we have all become familiar).  The voice advises that this is a mask.  It protects the wearer and others around them.  It is not a political statement.  It is a mask. The advertisement struck me, but not for the reasons they likely intended.  It moved me for two reasons.  First, I was saddened that the message even ...
• Discretion vs. Actual Decisions
  
  November 2, 2020
  By: Jon Jablon, Esq.   The concept of “discretionary authority” within a plan document can be somewhat esoteric. After all, Plan Administrators have to make decisions sometimes; even if the SPD doesn’t explicitly provide the Plan Administrator with the discretionary authority to interpret the provisions of the SPD (which it always should), practically speaking, the Plan Administrator could not possibly administer the plan without exercising some degree of discretion.   Let’s break down what discretionary authority really is, and what it really isn’t. The easiest way is to give a real-life example of something that our consulting department has worked on extensively; ...
• National Disability Employment Awareness Month: A Personal Perspective
  
  October 29, 2020
  By: David Ostrowski This October marks the 75th observance of National Disability Employment Awareness Month, a milestone that is being commemorated with a wide spectrum of events and activities, focused on the theme of “Increasing Access and Opportunity.” The slogan means many different things to many different people. Please allow me the opportunity share how it impacts my family. As parents of a six-year girl, Colby, who has a significant form of non-verbal autism, my wife and I are not worried about saving for college. We do not have fantasies of our daughter becoming a neurosurgeon or corporate attorney or ...
• ACB – The New Supreme
  
  October 27, 2020
  By: Nick Bonds, Esq. Amy Coney Barrett, President Trump’s nominee to fill the Supreme Court vacancy left by the late, great, Notorious RBG, is essentially now on a glide path to confirmation. By the time you’re reading this the Senate will have voted on her appointment. Like the committee vote, the full Senate vote is expected to fall along party lines, but with some Republicans announcing their intent to vote with Senate Democrats, and Vice President Pence potentially sidelined by coronavirus among his staff, the vote may come down to the wire. Even so, the balance of probabilities says ...
• Updating the Employee Handbook in Unprecedented Times
  
  October 21, 2020
  By Philip Qualo, J.D.   In general, employers should review and revise their employee handbooks at least annually to account for changes in local, state, and federal laws and workplace safety requirements. As employers begin to focus on reviewing their employee handbooks in preparation for a… hopefully better… 2021, many are pondering how to update their handbooks to adequately respond to the challenges presented by the COVID-19 pandemic and continuing racial tensions sparked by the murder of George Floyd. Although employers have generally been quick to adopt and enforce policies addressing COVID-19-and diversity related issues, the rapidly changing guidance and ...
• Offer More for More!
  
  October 8, 2020
  By: Ron E. Peck, Esq.   COVID-19 and the current pandemic has caused even more attention to be paid to health care and health insurance.  Yet, despite health care being a topic of discussion “in general,” during this Presidential election, I am surprised by how “little” airtime the specific issue of “Medicare-for-All” is receiving, compared to (for instance) the Democratic primaries.  Yet, I wonder if that is due (in part) to a false belief that, by nominating Joe Biden (as compared to, for instance, Elizabeth Warren) the people of this nation have rejected the idea of Medicare-for-All, and can move ...
• COVID-19 Impact on Self-Funded Health Plans
  
  September 29, 2020
  COVID-19 has impacted just about every aspect of our lives, and self-funded health plans have not been spared. Along with being mindful of employees' health during the pandemic, employers and HR managers must also be mindful of the state of their self-funded health plans. More than half of the non-elderly population in the United States receives health care coverage through an employer-based plan. The majority of this group are covered by either fully or partially self-funded health care plans. As such, the health care plans of many Americans could be impacted by COVID-19.  What Are Self-Funded Health Plans? Despite so many Americans ...
• Drug Pricing Still on the Ballot in 2020
  
  September 24, 2020
  By: Nick Bonds, Esq.   I doubt I am alone in feeling that 2020 has already crammed in roughly a decade’s worth of health crises, and we still have months to go. From murder hornets to the ever-present threat of the coronavirus, from wildfires turning the West Coast skies orange to so many hurricanes we are running out of names; our collective physical, mental, and emotional health has been through the ringer this year. Not to mention the tumbling dominoes of economic impacts wrought by all of the above, which by itself can have a substantial impact on our health. ...
• New Guidance on HIPAA – Using PHI to Contact Recovered COVID-19 Patients Regarding Plasma Donation
  
  September 21, 2020
  By: Andrew Silverio, Esq. Recently, the Department of Health and Human Services released updated guidance outlining some permissible uses of Protected Health Information (PHI) under HIPAA in regard to recovered COVID-19 patients (available at www.hhs.gov/sites/default/files/guidance-on-hipaa-and-contacting-former-covid-19-patients-about-plasma-donation.pdf).  This guidance, which applies to health care providers, health plans, and their business associates, is an expansion of previous guidance which applied only to health care providers. In essence, the guidance provides that these entities can use PHI to identify and contact individuals who have recovered from COVID-19 in order to inform them about how to donate their plasma, which will contain antibodies to ...
• An Overview of the Recent New York Federal Court Decision and its Potential Impact Moving Forward
  
  September 9, 2020
  By: Kevin Brady, Esq. In April of this year, following the passage of the Families First Coronavirus Response Act (FFCRA), the State of New York sued the Department of Labor (DOL), claiming that several provisions of the FFCRA exceeded the DOL’s authority under the statute. On August 3rd, the United States District Court of the Southern District of New York issued an opinion, siding with the State of New York and invalidating several provisions of the FFCRA. Specifically, the court invalidated the following regulations: The “work-availability” requirement Under the FFCRA regulations, individuals are not eligible for Emergency Family Medical Leave or ...
• Plan Mirroring: What Does It Really Mean?
  
  August 26, 2020
  By: Jon Jablon, Esq.   We hear a lot of chatter in the self-funded industry about “plan mirroring.” The idea is that a stop-loss carrier will adopt the same language as what is in the SPD, in effect “mirroring” the language, and that gets rid of what we at Phia like to call “hard gaps,” where the plan and carrier are working off different language, leading to situations where the plan must pay claims but the carrier may deny them. The point of mirroring the SPD’s language is so the plan never needs to worry about those kinds of gaps.   But ...
• HEALS vs. HEROES
  
  August 24, 2020
  By: Nick Bonds, Esq.   As the worldwide coronavirus crisis continues to grind on, impacting virtually every aspect of our lives, we have necessarily become familiar with the many pieces of legislation passed by Congress in its attempts to soften the blow to our country’s economic and healthcare systems. This has engendered a whole new can of alphabet soup: CARES, FFCRA, EFMLEA, EPSLA, PPP. Enacted late spring/early summer, these legislations have become staple pieces of the daily conversation in the arena of health benefits for employees. They’ve nearly begun to blend in with the furniture.   But as we are all ...
• Returning to Work Safely and Smartly. Who Bears the Cost?
  
  August 13, 2020
  By: Bryan M. Dunton Earlier this year, the coronavirus swept through the country and became such a major concern that employers shut down their physical offices and moved their operations remote. Not long after, states began mandating shutdowns and shelter-in-place orders. The overarching theme focused on how to keep everyone safe. Now, months later, states and employers have begun to relax those restrictions by reopening, albeit in phases. With that, employees have slowly been allowed to return to work in traditional office settings. Given that employers have an interest in the wellbeing of their employees, and would likely face significant business ...
• New Rules on Prescription Drug Importation Are Released – Or Are They?
  
  August 11, 2020
  By: Andrew Silverio, Esq. On July 24, 2020, the White House issued an “Executive Order on Increasing Drug Importation to Lower Prices for American Patients” as part of a handful of executive orders aimed at drug costs (available at https://www.whitehouse.gov/presidential-actions/executive-order-increasing-drug-importation-lower-prices-american-patients/).  At first glance, the order seems to take sweeping steps to facilitate the importation of prescription drugs, but does any of it really represent a departure from existing law?  The order specifically orders the Secretary of HHS to take action in three ways: Facilitate waivers to individuals against the prohibition on importation, “provided such importation poses no additional risk ...
• Texas Still Working On Mental Health Parity Rule Implementation
  
  August 3, 2020
  By: Kelly Dempsey, Esq.   Texas House Bill 10 was passed in 2017. The House Bill 10 “Study of Mental Health Parity to Better Understand Consumer Experiences with Accessing Care” was published in August of 2018. On June 16, 2020, the Texas Department of Insurance (TDI) published an informal draft rule to implement House Bill 10. Before we dive into the requirements, you’re probably wondering why I’m writing about this topic. My motivation is to draw attention to these requirements as they impact self-funded non-ERISA plans.   There are four division to the Bill which are summarized here: Division 1: Imposes mental health ...
• A Brief Anecdote on Testing for COVID-19
  
  July 29, 2020
  By: Kevin Brady, Esq.   This week, a close friend reached out and asked for my help. As an attorney, this is not all that uncommon. I am often asked to read apartment leases, organize estate plans, and opine on the merits of a potential tort claim. This request however, was a bit different. This time, my friend asked for help in getting tested for COVID-19.   As a bit of background, my friend lives and works in Chicago, Illinois. She has health insurance through her employer and she has outstanding benefits. She had “known exposure” to the virus last weekend ...
• Simple Negotiations Made Not-So-Simple
  
  July 23, 2020
  By: Jon Jablon, Esq. Case-by-case individualized negotiations are simple, and that simplicity is part of what makes vendors who perform these type of negotiations so attractive. This is not to say that it’s easy to secure great deals – but from a payor’s perspective, the process is generally fairly simple: you send a claim to the vendor; the vendor works its magic with the provider; the vendor sends the claim back to you with a negotiated rate attached to it and often a note about when it needs to be paid. No hassle, no fuss. A small percent of the ...
• The Supremes Weigh In
  
  July 15, 2020
  Nick Bonds, Esq. As the Supreme Court of the United States wraps up its first full term with Associate Justice Brett M. Kavanaugh rounding out the Roberts Court’s conservative majority comes to a close, we have a number of high-profile opinions to dissect. In addition to the customary tumult baked into an election year, this SCOTUS session deliberated while the coronavirus pandemic raged and the resurgent wave of Black Lives Matter protests swept the nation and the world. Amidst this background, the Court delivered opinions on issues as wide-ranging and politically charged as presidential powers, Native American sovereignty and ...
• Black Lives Matter … Yes, Even in Healthcare
  
  July 8, 2020
  By: Philip Qualo, J.D. Just when the United States was starting to adjust to a new COVID-19 reality, where bejeweled face masks, social distancing and hand sanitizer have become as fundamental to our existence as water, current events have yet again set us down a new trajectory in these unprecedented times. The May 25th murder of George Floyd, a Black man who was unarmed and handcuffed at the time of his death at the hands of law enforcement sparked a series of national protests that has called on the world to reexamine policies and practices that disproportionately impact people ...
• No Contract? No Problem!
  
  June 15, 2020
  By: Jon Jablon, Esq. In this strange time (strange because of both COVID-19 and the state of self-funded in general), things move at – to quote our CFO/CIO Joe Montalto – “the speed of business.” Candidly, I have never really been sure what that means, despite my smiling and nodding when he says it, but I think it’s a euphemism for “fast.” Things move fast. And you can quote me! How that manifests in our industry, in Phia’s experience, is that sometimes, a client needs certain services performed ASAP. There may not be time to receive an agreement, review it, ...
• Privacy Pitfalls - Considerations for Reopening the Office
  
  June 10, 2020
  By: Nick Bonds, Esq.   Summer is officially here, and employers and employees alike are all wondering if, when, and how to go back to the office. After a spring spent cooped up at home self-isolating and social distancing, many are eager to get back into their old routine, to reclaim some sense of normalcy. While we can all certainly sympathize with that sentiment, the specter of the coronavirus still looms large. To safeguard our collective health and sanity, we all have a responsibility to ensure that a return to office life is handled carefully, lest we experience a resurgence in ...
• IRS Temporarily Expands Cafeteria Plan Midyear Election Changes in Response to COVID-19
  
  June 3, 2020
  By: Philip Qualo, J.D. The Nation’s response to the COVID-19 pandemic called on employers to exercise greater flexibility and understanding for employees impacted by COVID-19. For the most part, the series of legislations enacted since the pandemic hit the U.S. have been aimed at expanding unemployment, group health plan coverage, leaves of absence, and providing financial support to struggling employers and Americans faced with an economy that evaporated overnight. However, plan sponsors offering benefits on a pre-tax basis through Internal Revenue Services (IRS) Section 125 cafeteria plans struggled to correlate the nationwide call to provide flexible options employees with the ...
• Hospitals Face Unprecedented Losses Due to the COVID-19 Pandemic
  
  June 1, 2020
  By: Andrew Silverio, Esq. As the days in isolation continue to stretch into weeks and eventually months, it seems there is no industry or business that has not been impacted by the COVID-19 pandemic.  But a recent report released by the American Hospital Association (available at https://www.aha.org/guidesreports/2020-05-05-hospitals-and-health-systems-face-unprecedented-financial-pressures-due) reveals a significant financial impact on hospitals and health systems, entities which are truly on the front lines of the fight against COVID-19.  This may seem counterintuitive – one might expect that a massive public health event like a viral pandemic would result in an influx of business and corresponding increase in ...
• A Joint Final Rule: Extending COBRA, HIPAA , and Claims / Appeal Deadlines
  
  May 20, 2020
  By: Kevin Brady, Esq.   Earlier this month, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) jointly issued a Final Rule extending a number of deadlines and timeframes relevant to group health plans. The Final Rule recognizes that as a result of the National Emergency, plan participants “may encounter problems in exercising their health coverage portability and continuation coverage rights, or in filing or perfecting their benefit claims. As such, the stated purpose of the Final Rule is “to minimize the possibility of individuals losing benefits because of a failure to comply with certain pre-established timeframes.”   The ...
• DPC During a Crisis
  
  May 13, 2020
  By: Jon Jablon, Esq. In case you haven’t heard, COVID-19 is kind of a bummer. We’re all at home, and like my colleague Jen McCormick, I’ve got a toddler who wants nothing more at any given time than to go to a playground. Even after so many weeks of this, it still seems surreal to be able to say “sorry, buddy, but if we go to a playground, dad might go to jail!” Anyway. This blog post is about direct primary care! Some have expressed the view that the best feature of DPC is the personalization of care; others say the ...
• WC Recovery in a Post COVID World!
  
  May 6, 2020
  By: Chris Aguiar, Esq. There are so many fascinating things to debate in what can only be described as perhaps the strangest times we as a society have collectively endured. Should we open the economy at the expense of American lives? Does the data even support this notion that social distancing makes a difference? How could the models have been so far off their original projections? How did the current administration do with respect to its response? It would be disingenuous to say that these are not topics in which I am interested, but in terms of the day ...
• Bouncing Through Quarantine
  
  May 4, 2020
  By: Nick Bonds, Esq.   While some of the United States is tentatively beginning to reopen, much of the country remains firmly under social distancing orders. The ripple effects of keeping people cooped up with their families vary wildly, but many are reveling in the extra time spent together, and are finding numerous ways to stay sane and entertained in the face of the Covid-19 pandemic.   Some of this has led to fairly predictable shortages, but there are reasons for hope. Aside from the struggle of grocery stores (and even a few global online retail-giants-who-shall-not-be-named) to keep toilet paper, disinfectant ...
• Did HHS Just Ban All Surprise Billing During The COVID-19 Pandemic?
  
  April 29, 2020
  Andrew Silverio, Esq. Apologies for the attention-grabbing headline, but no, as good as that would be for payers, it didn’t.  However, Kaiser Health News recently ran a story, which was also picked up by NPR, speculating that this is precisely what had occurred. The article, which ran on April 17, 2020, discussed the terms and conditions placed on providers who receive funds from the Public Health and Social Services Emergency Relief Fund under Public Law 116-136, one of which states that “… for all care for a presumptive or actual case of COVID-19, Recipient certifies that it will not ...
• The Silent Impact of COVID-19: The Rise in Mental Health & Substance Abuse Disorders
  
  April 27, 2020
  By: Philip Qualo, J.D. Before COVID-19 became a common household name, the United States was already in the midst of a mental health crisis. Rates of suicides and drug overdoses have been climbing in recent years; for example, in 2017, 17.3 million adults in the U.S. had at least one major depressive episode. This staggering figure is likely not even a true reflection, as studies show many people don’t seek treatment at all finding that stigma and shame keep 80% of people out of treatment. As the COVID-19 pandemic has consumed the nation, and the world, many of us are ...
• COVID-19: Social Distancing and Paid Sick Leave
  
  April 14, 2020
  By: Kevin Brady, Esq. The national shift to social distancing has effectively changed the way almost all of us go to work. For some, rather than physically report to an office, we simply wake up (hopefully followed by some coffee), and get the day going. The daily “Good Morning” from a coworker is sent over skype, the “Boomers” are now masterful “Zoomers”, and many talented folks juggle the full-time job of parenting while somehow managing their full-time work responsibilities each day. For some (very brave) others, such as nurses and grocery store employees, the way they report to work ...
• COVID-19… And What it Means to Work From Home with Small Children
  
  April 13, 2020
  By: Jen McCormick, Esq. COVID-19 has impacted most aspects of our lives, and the lives of our families.  From a healthcare perspective, we want to do all we can to protect our families from the virus.  In most cases this means that households where both parents work outside the home and children attend school or daycare are now all confined to their homes… every day. We do this in hopes of keeping the children and ourselves safe.  Being confined to our homes, however, can be challenging in many ways. For families where being home is the exception over the rule ...
• COVID-19 Testing & Cost-Containment
  
  April 1, 2020
  By: Jon Jablon, Esq. The CARES Act is brand new, obviously, but its treatment of the relationship between medical providers and health plans is anything but. As with just about all legislation to date on the topic of payor-provider relations, the legislature has not hesitated to essentially give all the power to the providers. The bill includes the following provisions: SEC. 3202. PRICING OF DIAGNOSTIC TESTING. (a) Reimbursement Rates.—A group health plan or a health insurance issuer providing coverage of items and services described in section 6001(a) of division F of the Families First Coronavirus Response Act (Public Law 116–127) with respect ...
• Waiving Copays and Deductibles for Testing Isn’t Enough – The Impact of COVID-19 on the Patient’s Pocket
  
  March 20, 2020
  By: Kevin Brady, Esq. In response to the mounting need to flatten the curve and slow the spread of COVID-19, the federal government has taken overt action in the passing of the Families First Coronavirus Response Act. The act effectively removes the financial barriers and facilitates access to testing, by requiring group health plans of all shapes and sizes to waive cost-sharing for expenses related to COVID-19 testing. The federal mandate to waive all cost-sharing on testing is significant, but may not be enough to address the potential costs that patients may ultimately bear. The testing was free, but those who ...
• How Flexible Can Your Plan Be?
  
  March 17, 2020
  By: Kelly Dempsey, Esq. Many federal regulations are set up to be a floor and not a ceiling – meaning employers and plans are permitted to be more generous than the federal regulation requires. This concept is important as we wade into unknown territories with the constant changes associated with coronavirus and the relevant employer and plan considerations. Two of the more common exceptions here are (1) permitted election changes for cafeteria plans under Code Section 125 and (2) requirements under HSA-qualified high deductible health plans (HDHPs), so we’ll review those quickly. Section 125 contains specific events that qualify as permitted ...
• The Difference – Healthcare vs. Insurance; Never Clearer
  
  March 16, 2020
  By: Ron E. Peck, Esq. For those who have followed my social media posts in the past, you’ll know that one issue I can’t escape is the constant political rhetoric regarding “healthcare,” and in particular, how politicians (and the general populace) refer to “healthcare” but in fact are referencing health insurance.  When they talk about the cost of healthcare, they don’t mean how much the provider charges for the care they provide.  Instead, they are referring to the premiums, co-pays, and deductibles for which the patient will be responsible out-of-pocket.  Those aren’t the costs of healthcare; they are the costs ...
• “Incur”-aging a Review of the Term “Incurred”
  
  March 12, 2020
  By: Kevin Brady, Esq. The first time I read a Plan Document at The Phia Group, I saw a word that I am ashamed to admit, I did not quite understand. A short word, an odd word, but an important one nonetheless. The term “Incurred” can be found over and over in most Plan Documents and stop-loss policies. Little did I know, this term would come up, over and over again as I continued to review these documents. With some variation in the language, the typical definition of the term establishes that claims are incurred on the date with which ...
• Special Rules Apply for Military Treatment Facilities
  
  February 27, 2020
  By: Nick Bonds, Esq. Any time a group health plan has to deal with a unique type of provider, they start playing by a different set of rules. Today we focus on one provider in particular: the Military Treatment Facility (“MTF”), and the powerful tools they have at their disposal to seek payments from plans. Modern efforts by the U.S. government to recoup military spending on medical care date back at least to World War II. At that time, the U.S. Department of Defense (“DoD”) (then the War Office) was primarily focused on recovering money spent caring for servicemembers injured by ...
• EMPLOYERS BEWARE: Handling Employee Absences Resulting from Coronavirus Quarantine
  
  February 19, 2020
  By: Philip Qualo, J.D. The complex employment issues surrounding government actions to isolate the new and fatal strain rose to the level of national news this month, as more than 300 U.S. citizens were quarantined on a cruise ship in Japan after a man who disembarked in Hong Kong was diagnosed with the virus. After being quarantined for 14 days, the passengers were finally evacuated from the cruise ship on February 17th.  The U.S. government has confirmed at least 14 of those Americans tested positive for the coronavirus just before departing Japan. The majority of U.S. passengers who continued to ...
• New Insight on Provider Surprise Billing
  
  February 17, 2020
  By: Andrew Silverio, Esq. Anyone who works in health benefits is familiar with surprise billing – the specific kind of balance billing which occurs when a patient visits an in-network physician or hospital, and receives an unexpected balance bill from an out-of-network provider that they didn’t have an opportunity to select, and in many cases, didn’t even know they had utilized.  Common culprits are anesthesiologists, assistant surgeons, and outside lab work. We often think of this as primarily a problem for emergency claims.  This makes a great deal of sense, since when someone presents at an ER or is brought there ...
• A Simple Mistake with Big Consequences: Is Your HDHP Actually HSA-Qualified?
  
  February 5, 2020
  By: Kevin Brady, Esq. Every week, we seem some variation of the question: Will this program impact our HSA-Qualified HDHP status? The programs in question often include direct primary care, telemedicine, managed care, or some combination thereof. The answer, often to the disappointment of groups hoping to provide more value to their participants, is that these types of programs can often run afoul with the Internal Revenue Service’s strict requirements on High Deductible Health Plans (HDHP). An HDHP must meet certain criteria to allow individuals enrolled to contribute to Health Savings Accounts (HSA). The problem arises when an HDHP no longer ...
• More Thoughts on The Cigna Racketeering Case
  
  January 28, 2020
  By: Jon Jablon, Esq. You may have read the blog post that my colleague Andrew Silverio wrote about this case just a few days ago. (If you haven’t, check it out!) After doing a deep dive into this case, there are a few specific things I want to bring up – and to do so, I’ll do some quoting from the complaint. The plaintiffs – certain medical providers that feel they have been victimized by Cigna – have made many allegations, some very specific, and some more sweeping in nature. While we have no basis to question the facts presented by ...
• I Got a Fever, and the Only Prescription is More Transparency
  
  January 23, 2020
  By: Nick Bonds, Esq.  With the Legislature moving at a glacial pace, the Trump administration has doubled down on its policy objective to reduce health care costs through executive action and administrative rulemaking. A key part of their strategy involves a push to increase transparency in the health care industry – taking special aim at hospitals and drug manufacturers. The apparent logic being that if hospitals and drug makers have to share their actual prices, patient reaction will be strong enough to drag prices down. Experts disagree as to how effective these strategies would be in theory, but we may ...
• Case to Watch – Advanced Gynecology and Laparoscopy of North Jersey, P.C. et al v. CIGNA
  
  January 20, 2020
  By: Andrew Silverio, Esq. In the final hours of 2019, a coalition of New Jersey medical providers filed a voluminous, 150-page complaint against CIGNA in federal court in New Jersey.  The providers, in general, are challenging the validity of CIGNA’s reference-based pricing (“RBP”) program, which guides the payments of numerous self-funded plans in and around New Jersey.  As would be expected with such a lengthy and thorough complaint, there are various causes of action being pursued – some allege criminal activities like “embezzlement, theft, and unlawful conversion,” and “a pattern of racketeering activity” under RICO.  Others strike more directly at ...
• ACA PCORI FEES ARE BACK
  
  January 14, 2020
  By: Philip Qualo, J.D. The Trump Administration has been very transparent in their efforts to undermine and dismantle the Affordable Care Act (ACA). There have been several milestones in these efforts, such as essentially gutting the ACA Individual Mandate by reducing the penalty to $0 for individuals who forego health plan coverage for the tax year. The Trump Administration has also passed on the torch to the federal courts, as the 5th Circuit Court of Appeals has recently ruled that the Individual Mandate is unconstitutional, and has kicked the case back to the lower courts to determine whether other parts ...
• What Happens to a Health Plan during a Merger or Acquisition?
  
  January 9, 2020
  By: Kevin Brady. Esq. While businesses who are considering a potential merger or acquisition have a lot on their plates, one thing that should always be addressed is the impact that the transaction will have on the benefit plans of both the buyer and the seller. While it probably does not represent the biggest concern, overlooking the potential impact on benefit plans can cause major headaches when it comes to potential mergers and acquisitions. Because the impact on the benefit plans will often be determined by the nature of the transaction and the specific agreement between the buyer and seller, it ...
• Embracing the Pain, Avoiding the Suffering
  
  January 6, 2020
  By: Ron E. Peck, Esq. I really enjoy the quote, attributed to Haruki Murakami, that “Pain is inevitable. Suffering is optional.”  This really hits home for me for a few reasons, personal and professional, but for our purposes – let’s consider how it relates to the health benefits industry and healthcare as a whole. Anyone paying attention to the media and political debates will no doubt make note of the constant rhetoric regarding healthcare, and more to-the-point, the “cost” of healthcare.  I’ve (here and elsewhere) discussed ad-nauseam my position that health “care” and health “insurance” are not the same.  That insurance ...
• Robbing Peter to Pay Paul: The Trouble with Cross-Patient Offsetting
  
  December 30, 2019
  By: Jon Jablon, Esq. Our consulting team (via PGCReferral@phiagroup.com) is often presented with the following scenario: Patient A visits Hospital, and the Plan pays certain benefits to Hospital which are later discovered to have actually been excluded by the terms of the plan document. This is a classic overpayment scenario, except that Hospital refuses to refund the overpayment to the plan (which it is well within its rights to do). In response, to try to avoid the loss, the Plan decides to activate the right it has given itself to offset future benefits payable against amounts due to the Plan. ...
• Prescription Drug Pricing – On a Back Burner, but Still on the Stove
  
  December 18, 2019
  By: Nick Bonds, Esq. With Presidential impeachment eating up the above-the-fold coverage pretty much universally, it is important to remember that Congress has other pressing issues to attend to. While a number of Democratic candidates are worried their mandatory attendance at the Senate trial will eat up valuable campaign time on the ground in the early primary states, the rest of Congress is still trying to keep the country running. For instance, while Democrats and Republicans have an “agreement in principle” on a stopgap appropriations deal to fund the government through the end of the fiscal year, the spending package still ...
• WORLD AIDS DAY 2019: Three Decades of Progress in Treatment and Healthcare
  
  December 11, 2019
  By: Philip Qualo, J.D. December 1st marked the 31st observance of World AIDS Day, an opportunity for the world to unite in efforts to stop HIV, support those affected by HIV, and remember those who have lost their lives to HIV-related diseases. The Centers for Disease Control and Prevention (CDC) first called attention to what is now known as AIDS in 1981.   In 1985, the first HIV test became commercially available. But the number of people who died from AIDS kept growing. The first licensed drug, AZT, had to be given intravenously. At the doses initially used, the drug was ...
• Washington’s “Surprise” Billing Law Goes Into Effect – January 2020
  
  December 9, 2019
  By: Andrew Silverio, Esq. Starting in 2020, Washington’s new law aimed at putting an end to a particular form of balance billing, known as surprise billing , will go into effect.  This includes situations where a patient has no reasonable opportunity to make an informed choice regarding their utilization of in-network versus out-of-network providers, for example in the case of emergency services or non-emergency surgical or ancillary services which are provided by an out-of-network provider within an in-network facility.  In these cases, the patient has no way of choosing what providers to utilize, or may not know (and would have no ...
• The More You Know, the More You Save: How Transparency in Health Care Can Help Empower Patients and Plans
  
  December 5, 2019
  By: Kevin Brady, Esq. On November 15, 2019, the Department of Health and Human Services, along with the Department of the Treasury, and the Department of Labor, issued proposed rules related to "Transparency in Coverage." These proposed rules come fresh off the heels of the executive order issued by President Trump in June of this year calling for increased transparency in the cost of health care, and the cost of coverage. As made clear by the title of the proposed rules, the goal of the executive order, and the resulting proposed rules, is to make the cost of health care transparent ...
• New Transparency Rules Released, But Will They Last?
  
  December 2, 2019
  By: Brady Bizarro, Esq. On Friday, November 15th, the Trump administration released two long-expected rules: one final rule on hospital price transparency and one proposed rule on “transparency in coverage.” The final rule on hospital pricing is set to go into effect on January 1, 2021. The proposed rule is currently in the notice and comment period in which the Centers for Medicare and Medicaid Services (“CMS”) is accepting comments from interested parties. Both rules are meant to deliver on a promise made by the administration; that consumers would receive “A+ healthcare transparency.” For a variety of reasons, however, the ...
• RBP: Why Litigate?
  
  November 22, 2019
  By: Jon Jablon, Esq. For those of you who have a player in the reference-based pricing game, you know that circumstances can arise when things don't go as planned. There are some providers, for instance, that are so dead-set on penalizing RBP plans and their members that they will accept nothing short of the full billed charge. As we all know, though, nobody gets paid full billed charges, and it's wildly unreasonable for anyone to expect that. But what is the end game, then, when a provider makes unreasonable demands and refuses to settle? One option that's becoming increasingly popular is ...
• Theories v. Practicality: The Simplest Answer is Often the Best!
  
  November 18, 2019
  By: Chris Aguiar, Esq. I recently spent a few days in DC with some of my colleagues, subrogation attorneys from all over the country. As is typical in conferences, we spent several hours a day putting our heads together, learning and educating, as well as coming up with strategies to combat some of the more recent efforts to find new ways to challenge the third-party recovery rights of benefit plans. Any time 50 lawyers get together in a room debating the same topic, things can get interesting, to say the least. It’s always fascinating to see how things that seem ...
• Warren and Buttigieg Cross Swords Over Health Care
  
  November 15, 2019
  By: Nick Bonds, Esq. The Democratic candidate known for her multitude of plans and granular policy detail, has officially unveiled her Medicare for All plan. After a series of sharp jabs on the last Democratic debate stage from several of Senator Warren’s peers (from Mayor Buttigieg in particular), the Senator’s campaign was quick to announce that their plan was in the works. To be fair, Senator Warren had been somewhat cagey in her responses. When asked point blank during the debates whether her plan would raise taxes on the middle class, she remained adamant that her plan would ultimately rein in ...
• An Objective Analysis and Response to Elizabeth Warren’s “Ending the Stranglehold of Health Care Costs on American Families”
  
  November 7, 2019
  By: Ron E. Peck, Esq. Below I will parse out some of the statements made by Senator Elizabeth Warren in her recent policy paper, titled “Ending the Stranglehold of Health Care Costs on American Families.”  Note that my attempt in so doing is to provide a response to some of the comments made by Ms. Warren, based upon my own experiences, observations, and understanding of health care and health insurance; without discussing any of my own political attitudes or personal biases.  This is not meant to be a reflection of my own, or The Phia Group’s, attitude or position as ...
• Happy (Almost) New Plan Year!
  
  November 6, 2019
  By: Philip Qualo, J.D. For employers who sponsor calendar year self-funded group health plans, the Fall season can be a very hectic time of year. This is usually the time of year that many employer plan sponsors begin reviewing their benefits in the context of the evolving needs of their workforce, and of course, plan costs. Based on my own experience in preparing The Phia Group health plan for the 2020 plan year, I have compiled several helpful tips for employer plan sponsors to keep in mind as they review their group health plans for the new plan year. Know Your ...
• Hospitals Jump Into the Fray – New Lawsuits Against Opioid Manufacturers
  
  November 4, 2019
  By: Andrew Silverio, Esq. In August, a $572 million Oklahoma ruling came down against Johnson & Johnson – the first major ruling against a drug manufacturer for its role in America’s ongoing opioid crisis.  The holding found that the drug manufacturer’s advertising and marketing helped flood the state with dangerous painkillers, and it dominated the news cycle as the first major “loss” for a drug manufacturer in a case of this type (many similar claims have been settled out of court.  It also sparked a firestorm of speculation about who will come out of the woodwork making such claims against ...
• The Tower of Babel – Talking Heads Talking Past Each Other
  
  October 31, 2019
  By: Ron E. Peck, Esq. As the 2020 Presidential Election draws closer, the topic of healthcare continues to dominate the airwaves.  Be it media or debate, this is one of the (if not the) issue about which everyone is talking; but pay close attention and you’ll notice they aren’t all speaking the same language. Access vs. Care vs. Insurance One word everyone can agree upon is “affordability.”  The issue, however, is that depending upon whom you ask, what it is that ought to be “affordable” differs.  Some people throw the term “access” around, while others seek affordable “care,” whilst still others focus ...
• Don’t Get Bit: Avoid Falling Into the COBRA Snake Pit.
  
  October 28, 2019
  By: Kevin Brady, Esq. Similar to a number of my millennial counterparts, my introduction to “COBRA” coverage did not occur during a college class or work project, but rather as a 26 year old kid who had to face the reality that relying on my parent’s health care coverage wasn’t going to last forever. Although a bit more expensive for me, COBRA was relatively simple from the qualified beneficiary’s perspective. Unfortunately, COBRA is lot less simple when looking at it through an employer’s eyes, especially when that employer self-funds its group health plan. Even at a first glance, employer responsibilities under ...
• Battle Lines Drawn over Medicare for All in the Latest Democratic Debate
  
  October 21, 2019
  By: Brady Bizarro, Esq. The fourth Democratic debate featured the largest crowd of candidates yet (twelve) debating everything from healthcare to billionaires to automation. On healthcare in particular, though, this debate sharpened distinctions between the Democratic candidates. The moderate candidates wasted no time in launching their most aggressive and detailed attacks on Medicare for All, the signature policy of the progressive wing of the Democratic Party. Senators Elizabeth Warren (D-MA) and Bernie Sanders (D-VT), the staunchest defenders of Medicare for All, found themselves repeatedly on the defensive, defending the proposal’s multi-trillion dollar price tag and its eventual abolition of the ...
• The “Greatest of Three” Rule & Barriers to Compliance
  
  October 17, 2019
  By: Jon Jablon, Esq. Codified at both 29 CFR §2590.715-2719A (b)(3) (https://www.law.cornell.edu/cfr/text/29/2590.715-2719A) and 45 CFR §147.138 (https://www.law.cornell.edu/cfr/text/45/147.138), federal regulations explain the “Cost-sharing requirements” with a requirement colloquially known as the “greatest of three” rule. This rule essentially says that for out-of-network emergency services, self-funded health plans must allow claims at the greatest of (1) 100% of Medicare, (2) the amount the plan would allow for non-emergent out-of-network claims (in other words, Usual and Customary, Maximum Allowable Charge, etc.), or (3) the median contracted rate for emergency services. It’s that third one that so often causes issues for plans, since this amount ...
• The Health Care Tug-of-War
  
  October 15, 2019
  By: Nick Bonds, Esq. Forgive me, but I want to take a minute to look at the politics of the health care debate. I know, the conversations around impeachment, gun control, immigration, and the 2020 election eat up a lot of the oxygen in the room. Plus, new evidence suggests that being politically engaged is a significant source of stress in our daily lives, and comes with its own emotional cost. Nonetheless, the discussion surrounding what path the American health care system should take is a fundamental concern to our industry, and it seems well worth taking a moment to ...
• The Art of the Pill: Will Trump Fully Buy Into an International Price Index?
  
  October 7, 2019
  By: John Shearer, Esq. On September 19th, Speaker Pelosi revealed a progressive solution to a problem currently consuming roughly 1.3% of the U.S. GDP and costing patients approximately $61 billion in out-of-pocket expenses. Pelosi’s proposal, expected to hit the House floor in mid-October, mirrors the Trump Administration’s October ‘18 proposal to lower prescription drug costs. Both proposals would index U.S. drug prices to that of foreign markets, such as Canada, Britain, and Japan, known as an international price index, or IPI. The proposals also create authority in the Secretary of Health and Human Services (HHS) to negotiate prices with pharmaceutical ...
• Patients are Increasingly Being Sent to Collections and Finding Themselves In Court – Sued by the Providers That Swore to Protect Them
  
  September 20, 2019
    By: Ron E. Peck, Esq. LEGAL PROFESSIONALS AGREE – THE RISK OF BEING SUED BY A HOSPITAL IS INCREASING, AND THOSE WITHOUT LEGAL REPRESENTATION WILL LOSE According to a report, court clerks in various geographic regions are witnessing a clear and undeniable uptick in the number of lawsuits being filed by hospitals and providers against patients.  Even the CEO of the hospital targeted by the report agrees that they “are no different from hospitals all over the Country that are suing patients” … “This is a national phenomenon.”  The hospital executive went on to tout the fact that they successfully win ...
• Department of Labor Issues FAQs to Clarify Mental Health Parity Regulations
  
  September 19, 2019
    By: Kevin Brady, Esq. On September 5, 2019, the Department of Labor (DOL) issued FAQs in an effort to promote compliance and clarify confusion surrounding the final mental health parity regulations. Generally, the Mental Health Parity and Addiction Equality Act (MHPAEA) requires that any quantitative (ex. visit limits and out of pocket amounts) and non-quantitative (ex. medical management, step therapy and pre-authorization requirements) treatment limitations on mental health conditions or substance use disorder (MH/SUD) benefits are offered in parity with medical and surgical benefits. Essentially, mental health parity laws ensure that group health plans, who choose to offer MH/SUD benefits (self-funded plans ...
• Number of Uninsured Increases for First Time Since Passage of the ACA
  
  September 16, 2019