Recent Posts

  • 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 SARS-CoV-2 which are useful in potentially treating COVID-19 patients. This activity has been classified as falling within the category of “health care operations,” and thus PHI can be used for this purpose without an individual’s authorization.  HHS outlines that these activities constitute “health care operations” in that “facilitating the supply of donated plasma would be expected to improve the covered health care provider’s or health plan’s ability to conduct case management for patients or beneficiaries that have or may become ...
  • Empowering Plans: P90 - IRS Notice 2020-29, COVID-19 and Cafeteria Plans: Self-Funded Plans Beware!
    September 15, 2020
    The COVID-19 pandemic has brought about an unprecedented wave of federal legislation in a short period of time specifically aimed at regulating employer-sponsored group health plan coverage. Similarly, the Internal Revenue Service (IRS) has followed suit and released several formal Notices aimed at extending COVID-19 relief options to cafeteria plans. In the most recent notice issued by the IRS, however, IRS Notice 2020-29, there are certain provisions that impact employer-sponsored coverage. If adopted by a cafeteria plan sponsor that also sponsors a self-funded health plan, these provisions can result in significant cost liability for the plan and create issues for stop-loss reimbursement. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)
  • 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 Emergency Paid Leave if their employer does not actually have work for the individual to do. The court concluded that the DOL failed to properly explain this additional requirement, and invalidated the regulation. Employer approval of intermittent leave Under the FFCRA regulations, employees are required to have approval from their employer in order to take leave under the FFCRA intermittently. The court opined that this was not permissible and vacated the regulation. Requirement to provide documentation of leave in advance Employees are ...
  • Empowering Plans: P89 - Healthcare Policy at the DNC/RNC
    September 2, 2020
    In this episode of Empowering Plans, Ron and Brady assess what we learned from the candidates on healthcare policy at the virtual Democratic and Republican national conventions. Over the course of two weeks, both parties showcased their platforms; one focused heavily on restoring the Affordable Care Act and a nationwide COVID-19 response, and the other on lowering prescription drug prices and covering all pre-existing conditions. What can our industry learn from the talking points? Join us as we cover all the angles and discuss what comes next as the presidential election draws ever closer. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)
  • 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 keenly aware – these pieces of legislation were not designed to be permanent. Many of these temporary rules are set to expire by the end of 2020, with a number of the key components like the payroll protection program, already lapsing, many of us are looking back to Capitol Hill and wondering if and when more economic aid will be coming.   Democrats in the House of Representatives put together a follow-up aid package in May. Clocking in at roughly $3 ...
  • Conflicts Abound – Providers & Facilities Fight Back
    August 17, 2020
    U.S. hospitals have lost over $200 billion from March to June as a result of canceled services due to the COVID-19 pandemic. In response, providers have changed their tactics. They are raising prices, appealing more denied claims, more aggressively fighting referenced-based pricing, and stepping up collections efforts. Now, more than ever, it is imperative for plans and their partners to be vigilant and protect their members and plan assets. Join The Phia Group’s team as they discuss these new aggressive tactics as well as the conflicts they are causing with networks and stop-loss. Click Here to View Our Full Webinar on YouTube Click Here to Download Webinar Slides Only
  • 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 consequences in the event of an outbreak at their place of business, some employers have implemented mandatory return-to-work testing for those employees who come back to the physical office space. On the national level, we have seen this approach implemented in major sports leagues such as the NFL, NBA, and MLB. The idea is essentially to test everyone who enters the building, regardless of whether they are displaying symptoms or have had known exposure. The expansion and implementation of mandatory return-to-work ...
  • 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 parity requirements that essentially mirror the federal requirements. The goal is a single unified standard for assessing parity. Division 2: Imposes requirements to submit reporting to the state on utilization review outcomes. The TDI notes that this data will not always be evidence of a violation, but this information will help TDI further assess the need to investigate potential issues and monitor benchmarking and changes over time. Division 3: Imposes requirements to analyze quantitative and non-quantitative treatment limitations for compliance ...
  • 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 and wanted to take a test to confirm whether she had contracted the virus as well. Now you may be asking, why would she ask you? What do you know about it? And the truth is, I didn’t know much about it, but I certainly do now. I know that there are a number of options for testing, but each of those options has a myriad of issues that go along with it.   Testing Options FDA Approved at-home Test Kit First, we ...
  • Empowering Plans: P87 - COVID-19’s Catch-22
    July 23, 2020
    In this episode of the Empowering Plans podcast, Ron and Brady discuss a Catch-22 emerging in the midst of the global pandemic - as more government intervention is needed to deal with COVID-19, calls for a public option and Medicare for All grow louder. Join them as they discuss this issue and other looming threats to the industry; from uncertainty over the ACA and out of control drug prices to the disruption of employment-based health insurance. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)
  • The Underlying Regulatory Landscape - Don’t Get Lost in the New Normal
    July 15, 2020
    As we remain hyper-focused on COVID-19, it is easy to forget other ongoing impactful industry events. Life goes on, and so too does lawmaking and litigation. Statutes, regulations, and case law have been and continue to be considered, debated, and finalized; resulting in serious, lasting effects.  It behooves us all to track them accordingly. Luckily for you, The Phia Group’s legal team has done just that – and they will happily inform and advise on what to watch, and how to adjust. Join us for this free, but invaluable event. Click Here to View Our Full Webinar on YouTube Click Here to Download Webinar Slides Only
  • 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 of color. The protests have spawned into a national movement in the U.S. that has aimed at reforms in law enforcement practices and legislative accountability. There is a very important arena, however, where racial disparities are not being discussed at this time, and that is in healthcare.  Disparate access to affordable, yet effective, healthcare has and continues to have disproportionately negative impact on people of color. In most cases, access to healthcare can be the difference between life and death. ...
  • Old Issues, New Environment – Not The Same Old Song
    June 16, 2020
    Join The Phia Group’s team of experts as they discuss familiar issues such as balance billing, surprise billing, mental health parity, telemedicine, COB, and others, while framed in the context of these unique times. How has COVID-19 changed these issues, if at all? How is the new employer environment exposing these issues? Listen in to find out what The Phia Group has to say! Click Here to View Our Full Webinar on YouTube Click Here to Download Webinar Slides Only
  • 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, collaborate with peers, make changes, have those approved by the vendor, and run a final version by upper management prior to the performance of the services. Certain vendors such as stop-loss carriers are extremely unlikely to proceed without written agreements either due to applicable law or liability concerns, but many vendors will happily begin performing services on no notice when their clients really need it. It can certainly be potentially dangerous, since contracts are, after all, designed to protect the parties ...
  • 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 cases and find ourselves cloistered in makeshift home offices for many months more.   The ideal solution is a vaccine, but that goal will likely not be realized until sometime in early 2021. Once a vaccine is created, there may still be delays in producing and distributing doses to Americans and the rest of the world, further delaying a return to something resembling the before times. To return to our workplaces sooner, the search continues for more immediate solutions.   Many employers, ...
  • 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 strict terms of their cafeteria plans. Section 125 cafeteria plans are required to maintain employee pre-tax elections for benefits offered through the plan for the full plan year, with very few exceptions. The type of benefits offered through a cafeteria plan generally include employer-sponsored health coverage, Health Flexible Spending Arrangements (Health FSAs) and Dependent Care Assistance Programs (DCAPs). The IRS also imposes strict limitations on when midyear changes to those elections may be made. As employers have been forced to deal with ...
  • 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 revenues for hospitals and other providers.  However, the report outlines various ways in which these providers are suffering significant losses – estimated at $202.6 billion over four months, or $50.7 billion per month. First, many Americans sheltering in place and reluctant to risk exposure to the virus are canceling or postponing standard care, and shortages of protective equipment and crucial drugs have forced providers to incur increased cost to secure these materials.  Additionally, the sudden and historic surge of unemployment ...
  • Empowering Plans: P84 - Workers' Comp. & COVID-19 - Preparing for an Influx
    June 1, 2020
    In this episode, Brady Bizarro and Jennifer McCormick discuss the impact of COVID-19 on workers' compensation claims. How can we tell if employees were exposed at work? How should employers prepare for an influx in claims? What actions are state legislatures taking across the country to expand workers' compensation benefits for pandemic-related injuries? Our legal experts grapple with these questions and more. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)
  • A Pandemic Economy – Industry Risks and Opportunities
    May 19, 2020
    As the economy suffers, our industry is impacted when employers furlough employees or implement layoffs, as well when employers can no longer afford to offer benefits or continue operations.  Fewer benefit plans, fewer plan participants, and dramatic changes in claim type and volume are certain, leaving health benefits at risk during a time when they are most needed.  Yet, there are those that are improving coverage, leveraging opportunities, and preparing to take advantage of the employer, employee, and claims growth likely to follow a lifting of stay-at-home orders.  Join The Phia Group as they discuss ways administrators are extending benefits and taking care of those in need.  From COBRA to workers' compensation, mandates to stop-loss, join us to discover innovative ways to conquer the challenges and come out on top. Click Here to View Our Full Webinar on YouTube Click Here to Download Webinar Slides Only
  • 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 best thing about it is the flat fee. In my view, though – through COVID-19-colored lenses – the best thing about DPC is that direct primary care providers are already prepared to work from home. When I text Dr. Tremblay, it doesn’t matter that his office is closed. It doesn’t matter that I could go to jail if I bring my son to a playground. No – all that matters is that during this crisis, my DPC provider is available to ...
  • 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 to day business of a subrogation professional (and in the context of this blog), I’m thinking much more in the weeds. The immediate question a lot of our subrogation clients are asking is quite simply, what is the rule regarding workers' compensation claims with respect to this pandemic? Will medical professionals, first responders, and even essential employees be able to make claims for workers' comp? One’s gut reaction might be to say, “of course they can!” – But deeper analysis ...
  • 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 wipes, and hand sanitizer in stock, the fact that our stores’ shelves have been rendered entirely barren should be seen as a testament to the resilience of our modern supply chain.   Nonetheless, there are a number of things you just can’t find right now. Toilet paper remains scarcer than I’d like it to. The meat case at my local store has been pretty sparse of late. You probably can’t buy a Nintendo Switch from a traditional retail outlet at MSRP ...
  • 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 seek to collect from the patient out-of-pocket expenses in an amount greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network Recipient.” For its expansive reading of this seemingly limited prohibition on balance-billing, KHN points to a statement on an explanatory HHS website (the article links to https://www.hhs.gov/provider-relief/index.html) stating that “HHS broadly views every patient as a possible case of COVID-19.”  The rationale then, is that if providers can’t ...
  • Empowering Plans: P83 – Video Conferencing & the Risk to PHI
    April 27, 2020
    In this episode, Ron Peck and Brady Bizarro are joined by consulting attorney Nicholas Bonds. Nick describes the unique concerns facing covered entities and their business associates as more of us utilize video conferencing platforms while under quarantine. What steps should you take to keep PHI safe? Finally, Ron and Brady end on a high note, summarizing some of the positive COVID-19 news that has come of late. Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)
  • 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 learning the hard way that life during a pandemic has even the most resilient of us drowning in unprecedented levels of stress. School and work closures, as well as stay-at-home orders, feel like they might stretch on for months. The volatile economy and sudden job losses have added a layer of financial insecurity that wasn’t a factor in people’s lives just a few weeks ago. Meanwhile, the rates of COVID-19 infections are rising exponentially, creating intense anxiety about what day-to-day ...