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!
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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 – but from a practical standpoint, relationships like this can be usually be handled in one of a few ways:
Standard industry practice
This is a method of interpretation of an implied contract where both parties act in accordance with what usually happens in the industry with respect to relationships like the one in question. Principles such as “fair market value” apply, where the vendor can’t decide to gouge the client just because no one has explicitly agreed to the fees. Standard industry practice is viewed as “the norm” – what a reasonably buyer and seller of services would reasonably expect their respective rights and obligation to be.
An unsigned service agreement
Numerous times, I have emailed a draft template service agreement to a TPA or broker that needed a medical claim negotiated ASAP. No time to review the contract – just enough time to email the claim and get it settled that day. While we could have relied on the aforementioned standard industry practice to govern the relationship, I prefer to send a copy of the contract that can be reviewed prior to, or even during, the performance of the services, so the client knows exactly what to expect. By saying “here are our terms; by asking us to perform this service sans contract, these are the terms that would have governed, and therefore we operating as if this contract were signed,” we can lay out our pricing and other terms so there can be no question of the details after the fact, and so we won’t need to look to what might be “standard” in the industry – especially since different entities may have different ideas, or experiences, of what is actually standard.
A previous agreement between the parties
Sometimes a vendor continues to perform a service after an existing contract has terminated. Runout can be specified in the agreement, in which case you likely need to look no further than the agreement’s terms – but without runout, if the agreement is truly terminated, and the vendor agrees to perform additional services anyway, it will generally be the case that the prior agreement can govern the relationship, since both parties were at the time aware of the other party’s conditions. Obviously a particularly old service agreement can’t necessarily be relied on – but the more recent the execution of the terminated agreement, the more likely the parties are to be willing to agree on the same terms.
Without a signed service agreement, some things can be left up in the air, so it’s always a best practice to memorialize any business agreement in writing to the extent possible – but when things are truly moving “at the speed of business,” sometimes you have to rely on the industry, an unsigned contract, or even a terminated contract.
If you want a second set of eyes to try to figure out a complex relationship between a health plan, TPA, or broker and another health plan-related vendor, don’t hesitate to ask The Phia Group’s experts, at PGCReferral@phiagroup.com.
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, Phia included, have been putting a tremendous deal of thought into the question of how to get employees back in the office while ensuring their health and safety. We’ve implemented a number of measures to minimize risk, such as limiting the total number of people in the office, providing masks and hand sanitizer to employees, checking temperatures as people enter the building, and posting a tremendous amount of informative signage around the office reminding people to keep their distance, cover their faces and wash their hands.
Some employers have sought more elaborate, technological solutions. A number of health and symptom-checking apps have sprung onto the scene, promising to measure employees’ health status and stave off potential workplace outbreaks. Some of these technologies are fairly straightforward, like social-distancing wristbands that buzz when those wearing them get too close to one another. In the right setting, such a device could certainly keep people mindful and help limit vectors of transmission. Other technologies are both more complex and more invasive. Smartphone apps that track employees’ location and act as near-continuous contact tracers, and biometric scanners that monitor for symptoms as employees move through the workplace. Far from Bradbury-esque MacGuffins, these technologies may become the new normal for many employees.
An alternative approach has been to ramp up antibody testing among the workforce, aiming to bring in those employees who have already been exposed to the virus and are (hopefully) immune. The fear with this approach is that it could inadvertently create a two-tiered economy, implicitly valuing employees who have been infected over those who have yet to be exposed. This could even create a perverse incentive, encouraging employees to actively seek to infect themselves as a pathway to returning to work, one of the many reasons that the World Health Organization discourages the “immunity passport” approach.
While none of these strategies can guarantee a virus-free workplace, they can certainly keep us all mindful and encourage best-practices. But at worst, these technologies implicate fundamental privacy concerns, which employers must be aware of. Obvious regulatory landmines for employers come in the form of laws like HIPAA and the ADA, which protect employees’ sensitive health information data. Agencies like the HHS’s Office of Civil Rights and the EEOC have weighed in, offering updated guidance to employers on how to balance employee privacy with maintaining a safe work environment amid the pandemic.
As more workplaces begin reopening, employee safety is a top concern, but privacy requirements cannot be forgotten. Employers must ensure their approach to reopening is a balanced equation, accommodating their business needs as effectively as possible while keeping their employees healthy and their health information secure.
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 mandatory shutdowns, furloughs, and newly enacted leave requirements, most plan sponsors found themselves with little guidance on how to handle requested changes to elections made before COVID-19 became a household name.
After much anticipation, the IRS finally released much needed guidance on May 12, 2020. In IRS Notice 2020-29, the IRS provides for increased flexibility with respect to midyear elections under a Section 125 cafeteria plan during calendar year 2020 due to COVID-19. The Notice applies to cafeteria plans that offer employer-sponsored health coverage, FSAs and DCAPs. The Notice permits an employer to amend its cafeteria plans to allow employees to:
Notice 2020-29 does not require cafeteria plans adopt these midyear elections. An employer that decides to amend their cafeteria plan to allow for any of the above midyear election changes must adopt a plan amendment. It should be noted that any amendment to a cafeteria plan made under pursuant to the Notice is only valid through December 31, 2020.
It is important to note that an employer is not required to provide unlimited election changes but may, in its discretion, determine the extent to which such election changes are permitted and applied, provided that any permitted election changes are applied on a prospective basis only, and the changes to the plan's election requirements do not result in failure to comply with the nondiscrimination rules applicable to Section 125 cafeteria plans.
In determining the extent to which midyear election changes are permitted and applied, an employer may wish to consider the potential for adverse selection of health coverage by employees. To prevent adverse selection of health coverage, an employer may wish to limit elections to circumstances in which an employee's coverage will be increased or improved as a result of the election.
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 has led to a corresponding rise in uninsured patients. Despite government efforts to expand access to COBRA coverage, these efforts have not impacted the cost of coverage itself, and it can still be prohibitively costly, especially for the newly unemployed.
The report itself provides a much more in-depth analysis of the impact of these factors, and I encourage reviewing it in full (with a grain of salt, as the AHA is ultimately an advocacy organization). Taken at face value, it remains to be seen what the ultimate impact on payers will be. Certainly some of this expense will be passed on to payers directly, for example increased supply costs for drugs and medical equipment, but more indirect and widespread impact is likely as well, for example if providers make concerted efforts to be more aggressive with billing and collections do to the increase in uninsured patients, or are forced out of operation, reducing healthcare options overall. For example, CNN outlines at https://www.cnn.com/2020/04/21/us/coronavirus-rural-hospitals-invs/index.html the disparate impact on rural hospitals, many of which are being forced to close down as the sudden and almost complete end of routine care is not accompanied by a corresponding surge in COVID-19 patients. In communities with few healthcare options, the loss of a single hospital can be disastrous, with no competitive incentive remaining for the surviving providers to reasonably limit their charges or ensure the quality of care beyond what’s necessary to manage direct liability.
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.
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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 Final Rule essentially requires plans to disregard a designated period of time when determining whether certain deadlines or timeframes are satisfied. Consistent with the Final Rule’s stated purpose, the extension of these timeframes will provide additional opportunities for employees and their dependents to maintain existing, or enroll in, coverage as well as provide additional opportunities for participant’s to submit and appeal claims. This designated period of time is succinctly described as the “Outbreak Period” which entails “the period from March 1, 2020 until sixty (60) days after the announced end of the national emergency period or such other date announced by the Agencies in a future notification.”
HIPAA
Special Enrollment
Under HIPAA, employees who experience certain special enrollment events generally have a limited period of time (following the event) to request coverage under their employer’s plan. Under the Final Rule, the Outbreak Period must be disregarded when considering whether a HIPAA special enrollment request is timely.
COBRA
Electing Continuation Coverage
Plan participants who experience “qualifying events” are generally eligible for continued coverage under COBRA subject to certain conditions. After receipt of the COBRA election notice, “qualified beneficiaries” have 60 days to elect continuation coverage. Under the Final Rule, plans must disregard the Outbreak Period when determining whether a qualified beneficiary’s election is timely.
Timely Payment of Premiums
After electing COBRA continuation coverage, qualified beneficiaries must pay their first premium payment with 45 days of their election. Furthermore, qualified beneficiaries must pay premiums in a timely fashion (a premium is considered paid timely “if it is made not later than 30 days after the first day of the period for which payment is being made.” Under the Final Rule, the Outbreak Period cannot be considered when determining whether payment of the premium is timely.
Notice of Qualifying Event
Under certain circumstances (generally divorce or a child losing dependent status), plan participants will bear the responsibility for notifying the group health plan of the qualifying event under COBRA. While COBRA typically requires this notice to be provided within 60 days, the Final Rule requires plans to disregard the Outbreak Period when determining whether notice is timely.
Claims and Appeals
Filing of Claims
Group health plans will generally limit the period of time in which a claim may submitted and considered eligible for coverage. Under the Final Rule, plans must disregard the Outbreak Period when considering whether a claim has been timely filed. This will undoubtedly lead to additional, and potentially significant exposure, for plans as claims that could have been properly denied previously, may now be payable under the plan.
Appealing an Adverse Benefit Decision
Group health plans must provide participants at least 180 days to appeal an adverse benefit decision. Whether a plan provides the required 180 days, or more, plans must disregard the Outbreak Period when determining this deadline. Similar to the extension of the deadline for filing claims, this extension may also lead to additional, and potentially significant, exposure for plans.
External Reviews
For claimants enrolled in non-grandfathered group health plans, those claims which are otherwise eligible for external review (only certain types of appeals are eligible), are entitled to additional time to request an external review under ERISA’s appeals procedure rules. Under the Final Rule, the Outbreak Period is disregarded when considering the deadline to file an external review.
Further, if a claimant’s external review request is not “complete” (meaning that the request for review is not sufficient to be considered by the Independent Review Organization) the claimant is typically limited to the duration of the filing period to perfect the request. However, the Final Rule also requires the plan to disregard the Outbreak Period when determining whether additional information, provided to perfect a request for external review, is timely.
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.
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 help me. Ironically, he may even be more available than usual, since he’s not burdened with that pesky office time. I can’t speak to the ability to retain DPC care in the midst of this crisis, but if the benefits of DPC in normal times weren’t attractive enough, it’s definitely worth looking into now! In this time of need, individuals or even entire employer groups would do well to explore this option, and provide some much-needed additional security to their families. This may sound like a sales pitch, but really it’s just my personal anecdote about how much more secure my wife and I are knowing that we can speak to a doctor at any time, and have prescriptions written for us, from the comfort of a playground. Or, uh, without ever having to leave the house, I mean. Please continue to stay safe, everyone – including social distancing and access to care!
Today, we launch a new series harkening to our Boston roots - “Wicked Awesome Wins.” Here, we will showcase our staff and some of their most successful and noteworthy wins on behalf of our clients. Join Ron and Brady as they interview Attorney Robert Martinez and explore a case in which he secured a massive balance bill write-off from a hospital using some creative tactics.