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Phia Group Media


The Phia Group's 3rd Quarter 2018 Newsletter


Phone: 781-535-5600 | www.phiagroup.com





The Book of Russo:
From the Desk of the CEO

The heat wave is here in Boston and so is the increased interest in self-funding. It seems that every day there are new employers, brokers, and others interested in getting in on the fun. What they all don’t realize is that there is no easy button. Building the perfect empowered self-funded employee benefit plan takes time and hard work. It requires attention to detail and a realization that you truly can control the overall cost of claims in your own unique way. Whether it’s changing your payment methodology, your access to pharmacy drugs, your contracting with facilities, or just how you cover out of network claims, the options are endless. Here lies the rub. Having all of these options makes all of us vulnerable to potential pitfalls like gaps in coverage with stop loss or language that is ambiguous at best; worst of all is the potential fiduciary breaches around the corner. This is why The Phia Group exists – to assist all of you in making the perfect self-funded plan. The opportunities are everywhere but so are the traps and the landmines. So while you enjoy a nice cold iced tea reading this quarter’s newsletter, feel happy knowing that we got your back… no matter what.
 

 


Service Focus of the Quarter: Phia Unwrapped
Phia Group Case Study
Phia Fit to Print
From the Blogosphere
Webinars
Podcasts
The Phia Group’s 2018 Charity
The Stacks
Phia’s Speaking Events
Employee of the Quarter
Phia News

 

Service Focus of the Quarter: Phia Unwrapped

The Phia Group is proud to announce that its “Phia Unwrapped” program has been generating extraordinary savings.

Wrap, extender, and other leased networks offer small discounts and audit restrictions, affording providers nearly unlimited rights. With Phia Unwrapped, The Phia Group replaces wrap network access and modifies non-network payment methodologies, securing payable amounts that are unbeatably low, based upon fair market parameters.

Phia Unwrapped places no minimum threshold on claims to be repriced or potential balance billing to be negotiated, and The Phia Group attempts to secure sign-off, ensuring providers will accept the plan’s payment as payment in full. Phia Unwrapped implementation entails setting up an EDI feed with the claims administrator, so claims are flagged, transferred, and repriced automatically. Phia Unwrapped is billed based on a percent of actual savings, leading to fair rates and no excessive costs for unprecedented savings – and if there’s pushback or balance-billing, our Provider Relations team is ready to handle it.

Out-of-network claims run through The Phia Group's Unwrapped program have yielded a whopping average savings of 74% off billed charges (three times the average wrap discount). On average, The Phia Group sees less than 2% of claims result in some form of balance-billing; these results are similar throughout many different plan types and geographies, proving that this program and these results can be replicated nationwide.

Based on our data, Phia Unwrapped has proven to yield significantly better savings than wrap networks. Can you and your clients afford to maintain the status quo in the face of results like this?

Contact our Vice President of Sales and Marketing, Attorney Tim Callender, to learn more about Phia Unwrapped. Tim can be reached by phone at 781-535-5631 or by email at TCallender@phiagroup.com.

Phia Case Study: Phia to the Rescue!

A particular plan participant, covered by a health plan whose subrogation services were provided by The Phia Group, slipped and fell while walking in a parking lot. She subsequently retained a personal injury attorney to represent her and pursue a claim against the owner of the parking lot. The Phia Group promptly placed the attorney on notice of the Plan’s lien.

After some time had elapsed, the plan participant notified The Phia Group that she had only received around $20,000.00 in settlement funds, which was almost equal to the amount of the Plan’s lien; accordingly, the participant requested a reduction, which The Phia Group considered in due course.

After doing some due diligence to confirm the settlement, and examining the considerable resources available to us, The Phia Group’s subrogation team was able to discover that this particular case had actually settled for many times the amount that the participant claimed to have received.

Armed with this information gleaned from diligent investigation, The Phia Group was able to recover the full amount of the Plan’s lien, without the need for any reduction.

 


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Fiduciary Burden of the Quarter: Making Sure the SPD is Sufficient!

The issue of what must be present in an SPD is fairly straightforward at this point; ERISA, the ACA, and other laws have been issued and interpreted, and those that haven’t are subject to the “good faith, reasonable interpretation” guidelines that we all know and love.

In the modern self-funded industry, though, the entities drafting Plan Documents and SPDs are very often not the entities that are legally responsible for creating and ratifying them; the Plan Sponsor must ultimately approve the SPD and is ultimately responsible for the content, but it is very uncommon for the Plan Sponsor itself to do the drafting. There’s nothing wrong with this, of course; everyone uses vendors!

When the employer itself doesn’t draft the Plan Document, though, how diligent is the employer in ensuring compliance and that the document meets the needs of the health plan – and who takes the blame if the document isn’t perfect?

We at The Phia Group have seen numerous instances – both in court and out – of employers “rubber-stamping” a plan document without truly reviewing and approving it. That doesn’t change who is responsible, of course, so the Plan Sponsor could be severely handicapping itself and violating its considerable fiduciary duties to ensure that its plan documents are up to snuff.

A best practice is for TPAs and brokers to ensure that the Plan Sponsor is given an opportunity to truly review and consent to the terms of its plan document. Employers love having the hard parts of self-funding done for them – but TPAs and brokers need to protect themselves!

We also recommend making sure that a TPA’s Administrative Services Agreement holds the TPA harmless in the event the plan document is somehow noncompliant or incorrect, regardless of who has drafted it, since it is the Plan Sponsor’s ultimate responsibility to approve it.

 

Success Story of the Quarter: Egregious Billing

A TPA with which The Phia Group works closely has a benefit plan client that incurred an $860,000 NICU claim. Luckily, this particular client happened to be utilizing The Phia Group’s Phia Unwrapped service. Accordingly, when the claim was incurred, it was repriced based on a percentage of Medicare chosen by the Plan, and paid accordingly, at the Plan’s Maximum Allowable Charge.

A few months later, the provider sent a balance-bill to the member, attempting to force the member to pay the entire balance of the claim. The Phia Group became involved, and after a lengthy negotiation process, The Phia Group was able to get the balance settled for 17% of the amount the hospital originally demanded from the patient. The utilization of the Phia Unwrapped service saved this health plan over half a million dollars – and what’s more, the wrap network (which the Plan abandoned in favor of utilizing Phia Unwrapped) would have afforded the Plan a contractual 22% discount.

The result? Phia Unwrapped netted the Plan savings of over $400,000 above and beyond its previous wrap network – and the patient is fully protected from balance-billing via the settlement agreement.


 


 

Phia Fit to Print:

• Money Inc. – State Reactions and their Power over Association Health Plans – June 30, 2018

• Self-Insurers Publishing Corp. – Conflicting Policies and Courts: When Plan Language Creates More Litigation than Coverage – June 1, 2018

• Self-Insurers Publishing Corp. – The Practical Impact of Ariana M. v. Humana Health Plan of Tex., Inc. on ERISA Denials of Benefits – May 8, 2018

• Money Inc. – The Rising Cost of Cost Containment – May 5, 2018

• Money Inc. – Freedom Blue: Why the Trump Administration Picked Obamacare over Idaho – April 2, 2018

• Self-Insurers Publishing Corp. – Drowning in A Sea of Paper – April 1, 2018



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From the Blogosphere:

The Tangled Web of Eligibility. Eligibility issues are typically very fact specific. Do you know the facts?

The Complications Surrounding Intermittent FMLA Leave! Allow us to uncomplicated intermittent FMLA Leave for you.

Bridging the Gaps Between...Everything! It’s very important that you avoid all gaps, and here’s why.

An Addiction to Health Insurance. For too long insurance has been treated as a shield, blinding people from the cost of their care.

 

To stay up to date on other industry news, please visit our blog.



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Webinars

Click HERE to Register!

• On June 21, 2018, The Phia Group presented, “Final Rule on Association Health Plans and YOU: Phia's Take,” where we discussed the final rule and explain the significant impact it is expected to have on the self-funded industry.

• On June 12, 2018, The Phia Group presented, “The Buck Stops…Where? Pointing Fingers in the Self-Funded Industry,” where we discussed why it’s in everyone’s best interests to work together to overcome issues rather than point fingers.

• On May 15, 2018, The Phia Group presented, “The Case for Collusion: How the Power Players May Have Defrauded Us All,” where we discussed the ways in which our industry can fight back and tackle the underlying problem of specialty drug prices.

• On April 19, 2018, The Phia Group presented, “4 Horsemen of the Plan-pocalypse,” where we discussed four issues that may not presently be keeping you up at night, but will certainly be disturbing your slumber very soon.

Be sure to check out all of our past webinars!



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Podcasts:Now Introducing Video Podcasts!

• On June 29, 2018, The Phia Group presented its first video podcast, “You’ve Gotta Fight, For Your Right, to Try,” where the team addresses the recently passed Right To Try Laws, and dissect the impact it may have – if any – on your health benefit plans.

• On June 22, 2018, The Phia Group presented, “Super-Empowerment,” where our hosts chat with none other than Brooks Goodison, President & Principal Partner at Diversified Group.

• On June 12, 2018, The Phia Group presented, “The Phia Group “MVP” Post-Mortem,” where our hosts discuss the recently concluded Phia Group Most-Valuable-Partners or “MVP” forum; an event that took place June 4th to the 6th at Gillette Stadium, home of the New England Patriots..

• On June 1, 2018, The Phia Group presented, “Empowering Plans: P43 - A Debrief of SIIA’s Fly-In on the Hill,” where Adam, Ron, and Brady discuss their trip to Washington, D.C. in which they took part in SIIA’s “Fly-In” event, where SIIA members met with their elected representatives to discuss self-insurance/captive insurance issues.

• On May 29, 2018, The Phia Group presented “Eliminating the Noise,” where Adam, Ron, and Brady interview David Contorno, President of Lake Normal Benefits.

• On May 24, 2018, The Phia Group presented “The Case for Collusion (Continued),” where The Phia Group’s Sr. VP, Ron E. Peck, and healthcare attorney Brady C. Bizarro as they answer the questions that you asked during our webinar on PBMs, specialty drug prices, and lawsuits alleging fraud.

• On May 17, 2018, The Phia Group presented “RBP - Yeah, You Know Me,” where The Phia Group chats once again with one of their Partners in Empowerment, Gregory S. Everett, President and CEO of Payer Compass.

• On May 7, 2018, The Phia Group presented “Everything's Bigger In Texas,” where our hosts interview Third Party Administrator, visionary, and industry expert – Caprock Healthplans’ own Executive Vice President, John Farnsley

• On April 24, 2018, The Phia Group presented “A Labor of Love,” where Adam, Ron, and Brady interview in-house specialist, VP of Consulting Attorney Jennifer McCormick, and discuss the many complicated issues surrounding surrogacy, and the costs for which benefit plans may be responsible.

• On April 18 2018, The Phia Group presented “Arresting the Financial Serial Killers,” where Adam and Ron interview the industry, and nationally, renowned Dr. Keith Smith of the Surgery Center of Oklahoma.

• On April 9, 2018, The Phia Group presented “New Kids on the Block,” where Adam, Ron and Brady interview one member of our industry’s too-small youth movement, Brian Olsen.

• On April 4, 2018, The Phia Group presented “Direct Primary Care – The Pot of Gold You’re Looking For,” where the Phia team interviews Doctor Jeff Gold of Gold Direct Care.

Be sure to check out all of our latest podcasts!

 



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The Phia Group’s 2018 Charity

At The Phia Group, we value our community and everyone in it. As we grow and shape our company, we hope to do the same for the people around us.

The Phia Group's 2018 charity is the Boys & Girls Club of Brockton.

The mission of The Boys & Girls Club is to nurture strong minds, healthy bodies, and community spirit through youth-driven quality programming in a safe and fun environment.

The Boys & Girls Club of Brockton (BGCB) was founded in 1990 to create a positive place for the youth of Brockton, Massachusetts. It immediately met a need in the community; in the first year alone, 500 youths, ages 8-18, signed up as club members. In the 25 years since, the club has expanded its scope exponentially by offering a mix of Boys & Girls Clubs of America (BGCA) nationally developed programs and activities unique to this club.

Since their founding, more than 20,000 Brockton youth have been welcomed through their doors. Currently, they serve more than 1,000 boys and girls ages 5-18 annually through academic year and summertime programming.

 

On Wednesday, April 24, 2018, The Phia Group announced The Boys & Girls Club of Brockton's Youth of the Year! The Youth of the Year was given a check for $2,500, as well as a new Dell laptop! So many congratulations to Adande Bien-Aime, you have embodied what a true role model should be for the youth of America.

 

 

 

At the 2018 MVP Phia Forum we held a silent auction of which all proceeds were donated to The Boys and Girls Club! The auction was a hit and we cannot thank all those who donated enough for their generosity in supporting such a wonderful organization. In addition to bids on great items like a signed Tom Brady jersey, a signed Lionel Messi jersey, and more, we received many kind donations after the event. We love The Boys and Girls Club and everything they stand for, we could not have wished for a better event to support an amazing organization!



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The Stacks

Conflicting Policies and Courts: When Plan Language Creates More Litigation than Coverage

By: Catherine Dowie, Esq. – June 2018- Self-Insurers Publishing Corp.

Mostly, working on any given subrogation file for a private, self-funded benefit plan is all about the hurry up and wait. Hurrying to communicate with the injured party, their attorney, the adjusters, investigators, and making sure everyone knows about the plan’s involvement and rights. Then waiting for the completion of treatment, the compilation of damages and some initial negotiations before racing to remind everyone of those rights, and potentially racing to the courthouse to make sure those rights are preserved. As the Supreme Court reminded us in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, timing is everything. 136 S. Ct. 651 (2016).

Click here to read the rest of this article


The Practical Impact of Ariana M. v. Humana Health Plan of Tex., Inc. on ERISA Denials of Benefits

By: Patrick Ouellette, Esq. – May 2018 – Self-Insurers Publishing Corp.

The abuse of discretion standard has long been a proverbial ace in the hole for self-funded employee benefit plan administrators in making factual determinations that, while perhaps not popular with the participant, they believed were consistent with the terms of the plan document. While the recent Ariana M. v. Humana Health Plan of Tex., Inc. is noteworthy for many reasons, the most immediate effect will be on the Fifth Circuit’s allowance of plan administrator discretion in making factual determinations.

Click here to read the rest of this article.

 

Drowning in A Sea of Paper

By: Tim Callender, Esq. – April 2018 - Self-Insurers Publishing Corp.

The challenges of setting up and administering an employer-sponsored, self-funded health plan are many. One of the largest challenges a self-funded plan sponsor faces is reconciling the vast number of documents that make a self-funded health plan “go.”

When navigated correctly, these challenges yield immense results in terms of rich benefit delivery within a fiscally responsible health plan mechanism. Still, challenges remain and should be discussed openly so that we can continue to grow and strengthen our industry.

Click here to read the rest of this article.

 

To stay up to date on other industry news, please visit our blog.

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Phia’s 2018 Speaking Events:

Phia’s Speaking Engagements:

Adam Russo’s 2018 Speaking Engagements:

  • 1/23/18 – Q4 Intelligence Conference – Tampa, FL
  • 2/2/2018 – Benefit Intelligence School District Conference – Phoenix, AZ
  • 3/7/2018 – SIIA Self-Insured Health Plan Executive Forum – Charleston, NC
  • 3/9/2018 – CGI Business Solutions Seminar – Manchester, NH
  • 3/14/2018 – Pareto StructuRE Meeting – Park City, UT
  • 4/12/2018 – Caprock Health Care Forum – Dallas, TX
  • 4/25/2018 – Berkley Captive Symposium – Grand Cayman Islands
  • 4/26/2018 – Innovative Risk – Grand Cayman Islands
  • 4/30/2018 – World Health Care Congress – Washington, DC
  • 5/17/2018 – Prairie States Broker Event – Chicago, IL
  • 6/21/2018 – GBSI Conference – Springfield, MO
  • 6/26/2018 – Leavitt Annual Event – Big Sky, MT
  • 8/24/2018 – WellHealth Workshop – Berkley Captive Program – Itasca, IL
  • 8/29/2018 – Gus Bates Insurance – Fort Worth, TX
  • 9/24/2018 – SIIA’s Annual National Educational Conference & Expo – Austin, TX

Ron Peck’s 2018 Speaking Engagements:

  • 1/25/2018 – HealthFirst TPA Client Conference – Tyler, TX
  • 3/6/2018 – SIIA National Conference – Charleston, SC
  • 3/7/2018 – CGI Business Solutions Seminar – Manchester, NH
  • 3/23/18 – Health Rosetta - Module 5: Next-Gen Plan Design – Boston, MA

Tim Callender’s 2018 Speaking Engagements:

  • 2/14/2018 – BevCap Captive Group, 10th Anniversary Meeting – Kona, HI
  • 4/25/2018 – Cypress University – Las Vegas, NV
  • 5/7/2018 – UBA Spring Conference – Chicago, IL
  • 5/16/2018 – Sun Life MVP Forum – Kansas City, KS
  • 5/24/2018 – Pareto Captive Services, Contrarian Re Captive Meeting – Nashville, TN
  • 6/25/2018 – Leavitt Conference – Big Sky, MT
  • 7/17/2018 – HCAA TPA Summit – Minneapolis, MN

Jen McCormick’s 2018 Speaking Engagements:

  • 4/17/2018 – Texas Association of Benefit Advisors – Dallas, TX
  • 5/16/2018 – IOA RE – Indianapolis, IN

 

 

 

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Get to Know Our Employee of the Quarter:
Ulyana Bevilacqua

Congratulations to Ulyana Bevilacqua, The Phia Group’s Q2 2018 Employee of the Quarter!


Ulyana maintains great client relationships because clients can trust her to send their requests on time and that the deliverable will always contain quality work. She remains professional in her correspondence and makes sure everything is done accurately. She also puts in extra hours to ensure organization with all client requests. This reflects positively on The Phia Group because it sends a message to our clients of our professionalism and how much we care.

 

 

Congratulations Ulyana and thank you for your many current and future contributions.

 


Phia News

World Congress 2018 Health Value Awards

On April 29, 2018, more than 350 nominees competed in the World Congress 2018 Health Value Awards to be the best and brightest applications to improve health outcomes, reduce costs and implement innovative health industry practices. The Phia Group is excited to announce we have placed Diamond in the Small Group Employer category and our co-founder and CEO, Adam Russo, has placed Silver in the Outstanding Benefits Provider category!

 

Phia Certification has Arrived!

We are pleased to announce our new internal Phia Certification Program. The Phia Group maintains lofty standards for the industry, and expects the same of our staff. Phia has always developed and implemented best-in-class training programs, keeping our employees up to date and comprehensively educated. As a result, our team is second to none in that regard… and today we are excited to announce a new way to show it. Phia has established its new Phia Certification Program for its employees; this internal program consists of 3 levels, each level testing an even higher caliber of industry expertise than the last.

By the end of 2018 all Phia employees, from our interns to our attorneys, will be Level 1 certified. For leaders and those seeking to take it to the next level, Level 2 of the Phia Certification Program is made available. Finally, for those who dare to dream – Level 3 is indicative of being “the best of the best” – capable of addressing any and all issues impacting our industry, as well as being able to predict the issues headed our way. Our Phia Certification Program will ensure that a consistent knowledge base and industry expertise is embedded in the entirety of our staff, providing you with the best service our industry has to offer.

 

 

The Phia Group Recognizes Diversified Group with 2018 Empowered Plan Award

At our annual MVP (Most Valuable Partners) event, we were pleased to recognize this year’s winner of The Phia Group “Trophy of Empowerment.” It is with appreciation that we publically announce the name of our 2018 Empowered Plan Award winner, Diversified Group.


After analyzing all of our MVPs based on a number of parameters including, but not limited to, collaboration with The Phia Group, a willingness to innovate, as well as application of a forward thinking methodology – reflected through efforts taken to secure the future of our industry – Diversified Group of Marlborough, CT – was a clear winner.

 

 

New Client Account Manager – Matthew Painten

As you may know, Matthew Painten has recently been promoted to Client Account Manager at The Phia Group, in addition to his Marketing Management role. Although you may already have a direct point of contact at Phia, please feel free to start communicating with Matthew directly for any and all of your requests. You may email him personally at MPainten@phiagroup.com or send an email to CAM@phiagroup.com.

 

 

Job Opportunities:

  • ETL Specialist
  • IT Systems Administrator
  • Health Benefit Plan Drafting Consultant
  • Claims Specialist, Provider Relations

See the latest job opportunities, here: https://www.phiagroup.com/About-Us/Careers

 

Promotions

  • Matthew Painten was promoted from Marketing Coordinator to Marketing & Accounts Manager
  • Hannah Sedman was promoted from Marketing Intern to Marketing & Accounts Coordinator
  • Garrick Hunt was promoted from Sales Executive to Sales Manager
  • Jacob Falkof was promoted from Customer Service Representative to Case Investigator
  • Nick O’Neill was promoted from Case Analyst to Legal Assistant

New Hires

  • Dakota Bagley was hired as an IT Intern                                           
  • Holly Blackstead was hired as a Marketing Intern
  • Andrew Modelane was hired as a Training Intern
  • Colleen Ahern was hired as a Case Investigator
  • Bethany LaChance was hired as a Recovery Intern
  • Alanah Lopes was hired as a Sales Intern
  • Philip Qualo was hired as an HR Compliance Specialist
  • Gambit Hunt was hired as a Sales & Accounts Coordinator

 

Fun at Phia:

The Phia Family is one good-looking group of wiffle-ballers! Our wiffle ball team entered the 7th annual John Waldron Memorial Wiffle Ball Tournament, where we were one game away from entering the semi-finals. We were up against some fierce competition, including some courageous Brockton Fire Fighters, that most certainly brought the heat. This tournament raised over $20,000! We are proud of the work our team did and can’t wait to play again next year.

 

 



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info@phiagroup.com
781-535-5600

The Stacks - 3rd Quarter 2018

Conflicting Policies and Courts: When Plan Language Creates More Litigation than Coverage

By: Catherine Dowie

Mostly, working on any given subrogation file for a private, self-funded benefit plan is all about the hurry up and wait.  Hurry to communicate with the injured party, their attorney, the adjusters, investigators, and make sure everyone knows to about the plan’s involvement and rights.  Then wait for the completion of treatment, the compilation of damages and some initial negotiations before racing to remind everyone of those rights, and potentially racing to the courthouse to make sure those rights are preserved.  As the Supreme Court reminded us in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, timing is everything.   136 S. Ct. 651 (2016). 

For the most part, the bulk of the plan’s cost-containment opportunity has always come at the resolution of some liability claim, which is usually years after the bulk of the treatment and payments.  Although many states require Medical Payments Coverage, Personal Injury Protection or some other form of no-fault coverage, they are typically in very small amounts.  There are exceptions, of course, Michigan’s unlimited PIP scheme, potential advancement of funds in Montana under Ridley v. Guaranty National Insurance Co., and high-minimum states like New York and New Jersey, but usually very little coverage is available to alleviate the burden on a plan to pay up front or leave a member to address bills with providers directly.  951 P 2d 987 (Mont. 1997).

In some circumstances, however, acting quickly when the case begins does turn up a policy that will meaningfully impact the plan’s liability from the start, where there is a policy for a specific loss or a high no-fault policy.  The problem arises when these policies are designed to be excess, which they usually are.  An excess policy is a policy designed to provide coverage only when no other coverage exists.  They are often inexpensive because they are designed to often only bear liability for a patient’s copayment or deductible obligations, rather than the bulk of the responsibility for medical claims.  Some are also only designed to cover bills associated with a specific event or activity, such as high school sports.

This issue frequently arises not only in the context of automobile no-fault coverage, but with school and recreational policies.  Schools will often secure excess policies for athletes or even students hurt in gym class, and they are common in adult recreational leagues (usually soccer, but I’ve handled a case where an adjuster was shocked to find that his company had issued a policy for a lawnmower racing league…).

So what happens when a health plan has a valid excess provision, but the accident or automobile policy that covers a specific incident does as well?  Although ERISA might allow a plan to preempt state laws, policy or plan provisions may call for a slightly different analysis.

Various Federal Circuit Courts of Appeal have heard this question and have reached a somewhat surprising conclusion, especially following the Montanile decision from the Supreme Court in 2016.  There is a long-standing split between the circuits on this question.  See Auto Owners Ins. Co. v. Thorn Apple Valley, Inc., 31 F.3d 371 (6th Cir. 1994) (terms of an ERSIA plan are enforceable over conflicting policy language of an insurer) c.f. Winstead v. Ind. Ins. Co., 855 F.2d 430 (7th Cir. 1988) (apportioning liability for claims pro rata).  Both of these cases addressed Michigan PIP policies, which provide unlimited coverage for, among other things, medical bills related to automobile accidents.  Both the PIP policy and the health plans involved in the dispute had excess provisions, and in both cases the auto insurer filed suit, asking the court to declare that the that the health plan should pay the bills as primary.

The 6th Circuit concluded that the ERISA plan terms were not entitled to any deference over the terms of the auto policy and ordered the two litigants to pay the claims on a prorated basis.  Straightforward enough.  Neither policy had a cap on coverage, and the outstanding bills could be split on a 50/50 basis.  One significant problem with this decision as applied to slightly different facts, is how does one pro-rate a theoretically infinite policy with a more standard PIP policy which might have limits of $10,000 or less. McGurl v. Trucking Emps. of N.J. Welfare Fund, Inc. , 124 F.3d 471, 485 (3d Cir. 1997) (noting that it is “unclear how the rule [prorating] would operate in practice”).

The 7th Circuit, when faced with the same issue, gave more weight to the primary purpose of ERISA.  These conclusions were perfectly in line with what the Supreme Court would later point out, the whole reason that the plan, “in short, is at the center of ERISA” and “[t]his focus on the written terms of the plan is the linchpin of ‘a system that is [not] so complex that administrative costs, or litigation expenses, unduly discourage employers from offering [ERISA] plans in the first place.’” Helimeshoff v. Hartford, 134 S.Ct. 604, 612 (2013) (quoting Varity Corp. v. Howe, 516 U.S. 489, 497 (1996)).  Without giving force to valid and clear terms, uniform nationwide enforcement would be undercut.

In the last 5 years, this issue has been somewhat frequently litigated in the context of non-automobile excess policies.[1]  In addition to the existing split on what weight to give the terms of an ERISA plan, courts have now drawn a distinction based on if the plan paid claims before initiating suit.  Courts have allowed plans to pursue declaratory relief, obligating the insurer to issue payment in the future, but not recover from insurance policies with excess provisions once the plan has already paid claims.

This pre/post payment distinction is based on the idea that plans can only seek a monetary award with a court if they can identify a specific pool of money that they have a right to, like a settlement fund, which does not exist when benefits are being coordinated between two payors.  Additionally, some insurers have argued that ERISA is irrelevant even to the determination of primary liability for payment, asking courts to leave these “run-of-the-mill contract disputes” to state courts.

As one court noted:

The paradoxical result [of this argument] is that as an ERISA plan, has fewer remedies than it would if it were a non-ERISA plan, and its beneficiary, through no fault of his own, is considerably worse off for having two policies that coincidentally had conflicting language than he would be if he had only one. One might think that the underlying purposes of ERISA and of equitable relief generally would permit a court to fashion an appropriate remedy.

Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150, 159 (2d Cir. 2014).

As long as these issues remain unresolved, health plan liability will remain uncertain, and insurers and plans alike will be encouraged to leave claims denied and turn to courts before issuing payments.  This leaves plan participants to deal with bills everyone agrees will not ultimately be their responsibility, and forces plans into a position where they may risk loss of discounted rates or access to other benefits that are only available if payment is made within a specific timeframe.  Health plans can seek to preserve enforcement of their terms through diligent investigation and coordination with – and education of – all parties and payors as soon as claims are incurred.


[1] Dakotas & W. Minn. Elec. Indus. Health & Welfare Fund v. First Agency, Inc., 865 F.3d 1098 (8th Cir. 2017); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Am. Int'l Grp., Inc., 840 F.3d 448 (7th Cir. 2016); Cent. States v. Student Servs., 797 F.3d 512, 60 EBC 1857 (8th Cir. 2015); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150 (2d Cir. 2014); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. First Agency, Inc., 756 F.3d 954 (6th Cir. 2014); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Health Special Risk, Inc., 756 F.3d 356 (5th Cir. 2014); Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Bollinger, Inc., 573 F. App'x 197 (3d Cir. 2014).

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The Practical Impact of Ariana M. v. Humana Health Plan of Tex., Inc. on ERISA Denials of Benefits

Patrick Ouellette, Esq.

The abuse of discretion standard has long been a proverbial ace in the hole for self-funded employee benefit plan administrators in making factual determinations that, while perhaps not popular with the participant, they believed were consistent with the terms of the plan document. While the recent Ariana M. v. Humana Health Plan of Tex., Inc. is noteworthy for many reasons, the most immediate effect will be on the Fifth Circuit’s allowance of plan administrator discretion in making factual determinations.

The Fifth Circuit finally joined the fraternity of all other circuit courts that has held decisions made by plan administrators under ERISA Section 1132(a)(1)(B), whether legal or factual, are to be reviewed using a default de novo standard. In addition to introducing consistency across the circuit courts regarding standard of review, the en banc holding in Ariana M. v. Humana Health Plan of Tex., Inc. greatly reduced the amount of inherent deference granted to plan administrators for factual determinations. Self-funded employee benefit plans should be aware of the repercussions of no longer having the abuse of discretion standard available in the Fifth Circuit if there is an appeal regarding its factual determinations relating to, for instance, a denial of benefits.

Prior to this decision, every other circuit court except the Fifth Circuit had applied a de novo review when an ERISA plan document does not expressly grant discretion to plan administrators. These courts based their rationale on the fact that the famed Firestone Tire & Rubber Co. v. Bruch case does not make a distinction between a trustee’s legal interpretations versus their factual decisions regarding the requirement for de novo review. Ariana M. v. Humana Health Plan of Tex., Inc. is legally significant because Fifth Circuit had long held that, under ERISA, a plan administrator was entitled to an abuse of discretion standard of review with respect to its factual determinations. In short, the court to this point had given plans the benefit of the doubt for factual determinations unless the plan had made an unreasonable decision. Now these administrators will be held to the de novo standard, without deference to its factual findings. This shift the court considering an issue for the first time without this deference will likely affect how and under what circumstances plan decisions are made. Thus, it is critical to also consider the practical impact that the holding will have on plan administrators that have relied for years upon Fifth Circuit providing them with this high degree of discretion in making factual determinations even when a plan has not expressly granted them that discretion.

Fifth Circuit Standard of Review Background

Employers, and the plan administrators, traditionally have broad discretion to determine how plan terms will be used, as well as to decide which entities will have the authority to make benefits determinations, factual determinations, appeals determinations, and language interpretations. The Supreme Court in Firestone held that only if a plan explicitly delegated authority to a plan administrator, the decision would be reviewed under a heightened “abuse of discretion” standard. The Court famously stated a “denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” If there was no express delegation, however, the Court held that courts would need to review a denial of benefits challenged under ERISA using a de novo standard. The holding did not directly clarify whether it was referring to both legal interpretations and factual determinations for the de novo standard.

In Ariana M. v. Humana Health Plan of Tex., Inc., the Humana Health Plan of Texas argued that it had a discretionary clause granting to Humana “full and exclusive discretionary authority to: [i]nterpret plan provisions; [m]ake decisions regarding eligibility for coverage and benefits; and [r]esolve factual questions relating to coverage and benefits.” Due to a Texas antidelegation statute making discretionary clauses unenforceable, Humana agreed not to use the argument that the plan document gave it direct authority. Notably, the court remained silent on whether ERISA preemption came into play because Humana did not raise the argument. Instead, Humana relied upon the Fifth Circuit’s holding in Pierre v. Conn. Gen. Life Ins. Co. to argue that for factual determinations under ERISA plans, the abuse of discretion standard of review is the appropriate standard and therefore it had not abused its discretion in making its determination. The Fifth Circuit granted en banc review to reconsider Pierre and determine the default standard of review that would apply in these situations.

The Fifth Circuit’s decision in Ariana v. Humana Health Plan of Texas essentially reversed its own interpretation of Firestone in Pierre. According to Pierre, without delegation of authority to a plan administrator, challenges to a legal interpretation of a plan should be considered under a de novo standard of review while factual determinations were to be under an abuse of discretion standard of review. The Pierre court based its reasoning on the concept that an administrator's factual determinations are inherently discretionary and the Restatement (Second) of Trusts supports giving deference to an ERISA plan administrator's resolution of factual disputes even when the plan does not grant discretion.

The Ariana court essentially held that Pierre’s interpretation is no longer good law, despite some strong dissenting opinions, including from Judge E. Grady Jolly, who authored Pierre. The dissent focused its dissatisfaction with the majority’s opinion on the discrepancy between legal analysis and credibility determinations and a lack of express authority in Firestone.

Factual Determinations That May Now Be Subject to De Novo Review

Now that Ariana held that Firestone's default de novo standard applies when the denial is based on a factual determination, it is worthwhile to see how this change would play out in the types of factual determinations that plan administrators make on a regular basis. This is not intended to be an exhaustive list of decisions that will be affected, but instead meant to illustrate the types of complications that Ariana could create for plan administrators if they are a party to case that reaches the Fifth Circuit.

First and foremost, Humana Health Plan of Texas in Ariana used its discretion to decline to allow partial hospitalization for Ariana beyond June 5th, claiming it was no longer medically necessary. Using Pierre’s precedent, the district court concluded only that "Humana did not abuse its discretion in finding that Ariana M.'s continued treatment at Avalon Hills was not medically necessary after June 4, 2013." Plan administrators are often making factual decisions as to whether treatment is “medically necessary” and therefore whether it should provide coverage according to the terms of the plan document. In the Fifth Circuit, these plans were granted broad deference regarding these determinations because of its decision in Pierre. Similar to the rest of the circuit courts, medical necessity determinations are now subject to de novo review. However, Ariana is merely the tip of the iceberg in that these types of factual determinations are not limited only to questions of medical necessity.

Another determination in which plan administrator discretion is paramount is the application of plan document exclusions, such as excluding coverage if the treatment or care was the result of illegal or hazardous activity. Each plan document has its own set of exclusions that it can choose whether or not to apply to a given set of facts, but the Fifth Circuit had traditionally separated itself from the rest of the circuit courts up until this point as to the standard by which these exclusion determinations would be judged. Anyone who works in the self-funded industry knows how controversial and fact-dependent the practice of excluding participant claims can be for a plan administrator. Without an abuse of discretion standard and de novo standard now in place, however, these administrators may potentially be more wary to automatically exclude a plan participant’s claims due to an illegal or hazardous activity exclusion if, for example, the facts are unclear.

Next, plan administrators often make plan eligibility decisions that will be affected by the Ariana decision in the Fifth Circuit. These determinations will include, for instance, whether spouses are eligible for coverage after they dropped their own plan based on the plan’s eligibility language. Previously free from the potential second-guessing involved in with the de novo standard of review, administrators now more than ever will need to be sure to document their coverage decisions based on the plan document language and be able to defend them in court if necessary.

Administrators also make factual determinations regarding administration of high-deductible health plans (HDHPs), health savings accounts (HSAs), flexible spending accounts (FSAs). Some prime examples of these administrative issues would be deciding which items covered under an HSA would be deemed “preventive” or whether the plan had avoided first-dollar coverage under an HDHP. Similar to the above, the Fifth Circuit will now view the process of how these factual decisions were made in a much different light.

Finally, now that these plan administrators are subject to the de novo standard of review instead of abuse of discretion review, they should remember the ERISA requirement that factual determinations must be made consistently in similar scenarios in the future. Though this is not necessarily a novel consideration for plan administrators, it is a worthwhile reminder that decisions made under this “new” standard of review will be used as precedent for its decisions made in the future as well, adding to the weight of these determinations.

Patrick Ouellette, Esq., is an attorney with The Phia Group, LLC.

Biography

Patrick joined the Phia Group in 2017. He earned his B.A. in journalism and writing from the University of Rhode Island and spent time as a sports writer and also as a healthcare technology journalist. He later graduated from the Suffolk University Law School evening program with a health and biomedical concentration with distinction. Patrick has legal experience with healthcare providers and in state government. He was also a published staff member of the Suffolk University Law School Journal of Health and Biomedical Law and later served as Chief Content Editor on the journal’s executive board.

_______________________________________________________________________________________________________

Drowning in A Sea of Paper

By: Tim Callender, Esq.

The challenges of setting up and administering an employer-sponsored, self-funded health plan are many. One of the largest challenges a self-funded plan sponsor faces is reconciling the vast number of documents that make a self-funded health plan “go.”

When navigated correctly, these challenges yield immense results in terms of rich benefit delivery within a fiscally responsible health plan mechanism. Still, challenges remain and should be discussed openly so that we can continue to grow and strengthen our industry.

 

The task of reconciling governing documents is challenging for anyone, but it can be an especially daunting job for any plan sponsor, broker/consultant, or interested party mostly familiar with the fully insured platform. In that relatively simple world, everything “goes” with minimal paperwork – at least in the front of the house – but, this simplicity comes at a significant cost and with a significant lack of control and customization.

Clearly, for most employers that really look into the options, self-funding is the way to go. But, if you want to play in the self-insured world and reap the significant financial benefits of the self-funded model – get ready to read, re-read, audit, reconcile, and review more paperwork than a forensic accountant scouring financial records written in invisible ink.

In the interest of staging the optics for this brief piece, let me be incredibly clear that I am 10,000% a believer that self-funding is the best model to deliver rich and affordable health benefits, and the success of the self-funded industry is a personal goal and passion of mine. I am a firm believer that all stakeholders in the self-funded space are vital for the success of this model.

The comments made herein are not meant to demonize any one player, nor am I out to state that any particular stakeholder causes more complication than anyone else. Rather, I hope that through an honest, and a little self-critical conversation (laced with humor), we can identify some brutal truths regarding our great industry so that we can continue to work together for the betterment of self-funding, as a whole!

To approach this in an organized fashion, let’s make a list of some of the array of paperwork needed for a self-funded health plan to fully function (at least the top documents most commonly involved). From there, we can explore one or two examples that reflect “problem areas,” and/or bullet points that we should all think about when reflecting on these documents. Not all problems will be (or should be) explored in this article, but, hopefully, this conversation gets the wheels turning and points us toward improvements and solutions.

Governing Plan Document / Summary Plan Description – This is the cornerstone of every self-funded health plan. Without a governing plan document, you have.... Well... a nebulous concept of a health plan devoid of any defining rules or benefit structure, with all the details living in someone’s head and likely spread across a series of emails and meeting notes! Good luck with a government audit on that one!

Items that could be “problem areas” include:

  • Does the plan document contain benefit carve outs that fly in the face of a network contract?
  • Is the plan document written before the current plan year is even over?
  • Was the plan document compared to the relevant stop-loss policy to look for coverage / reimbursement gaps?

Summary of Benefits and Coverage (SBC) – Thank you Affordable Care Act! As we all know, health insurance is confusing and saturated with paperwork. Well, thankfully the ACA saw fit to “simplify” health coverage by requiring, yes, you guessed it, more paperwork! Better hope your SBC lines up with your SPD or you might be SOL with the DOL while listening to OPP in the LBC.

Items that could be “problem areas” include:

  • Do the benefit examples in the SBC actually match up with the intended benefits of the plan document (what if a plan member relies on the SBC for benefits and the plan document has not been fully written/issued yet...?)
  • Was the benefit structure of the Plan fully finalized before issuing pre-enrollment SBCs (in other words, how many people have pushed SBCs out, just to “get them done,” while recognizing that the benefit structure of the plan document is likely to change by the time it is finalized?).

PBM Agreement – And then, let’s add drugs. No, I don’t mean “let’s add drugs” in the context of a 1970s Grateful Dead, San Francisco acid test – rather, and as if it’s not confusing enough, let’s take a completely separate entity, bring them to the party to assist with a plan’s Rx benefits, and then, in the frantic insanity that is a 60 hour work week, hope that we all read over the PBM agreement to see if it lines up with the intent of our health plan and that the language in the plan document echoes that same alignment – oh, and maybe stop-loss to?

Items that could be a “problem area” include:

  • Is there a clear alignment in the contracting (and the plan document!) regarding which entity might handle / administer claims and appeals for particular Rx benefits? – Has the language in the plan document, as required by the PBM, been reconciled with the Plan’s stop-loss policy, network agreement, and/or SBC?

Network Agreement – Where to start...?

Items that could be “problem areas” include:

  • How many parties are expected to be bound by a particular network agreement?
  • Are there inconsistencies in how particular benefits should be paid as laid out between the network agreement and a plan’s governing plan document?
  • Is the Plan administering a reference-based pricing program, and, if so, have network obligations been taken into account?
  • Have all vendor contracts, and their roles, as related to the administration of a plan, been reconciled against the roles and responsibilities of the plan, as laid out in the network contract?
  • Are there inconsistent medical management criteria as laid out between the plan document, the network contract, the PBM contract, and other documents?
  • Are the benefit payment timelines (and appeal timelines), as between the plan document and the Network Agreement, cogent so as to assure the Plan is not losing a network discount or risking a prompt-payment Network Agreement breach term?

Stop-Loss Policy / Agreement – Too often we see material variances in the wording of definitions and exclusions, as between plan documents and stop-loss policies. To state the obvious, this can create significant coverage gaps, manifesting in reimbursement denials that are not necessarily invalid. Common discrepancies include a disconnect in a “medical necessity” definition or an “experimental and investigational” definition.

Additionally, what about notice provisions? While not directly related to a misalignment between plan document and stop-loss terms, this concept can create havoc when a plan-sponsor does not pay especially close attention to the notice requirements present in a stop-loss contract. More specifically, does the contract require the sponsor to provide notice to the carrier any time the Plan modifies benefits? If so, and if the Plan fails to do so, a significant (and likely valid) coverage gap may exist.

Items that could be “problem areas” include:

  • Pretty much everything I’ve written above, plus this one, often forgotten gem: gaps that might exist between a plan document and an employer-sponsor’s employee handbook, related to leave of absence provisions, which may lead to eligibility issues and subsequent reimbursement denials at the stop-loss level.

Administrative Services Agreement (typically with a TPA or a carrier on its ASO platform) – This document can tend to be the “unifier” or the “great divider.” So many solutions and pieces that make up a self-funded plan all fall together in the ASA. This document is key. I’ll say it again, KEY.

Items that could be “problem areas” include:

  • Who is the named fiduciary outside of the Plan Sponsor (are there others – are there shared duties – are there fiduciary inconsistencies between the ASA, the plan document and the various vendor contracts involved?)
  • Are all vendors mentioned and/or properly referenced within the ASA?
  • Does the ASA properly outline a scope of duties and responsibilities in a way that mirrors the intent of the Plan and as reflected in all other governing plan documents?

Employee / Employer Handbooks – This one just splashed onto the scene in a pretty incredible way over the past year or so.

Items that could be “problem areas” include:

  • As discussed above, have the handbook, plan document, and stop-loss policy been “bounced together” to assure there are no issues that might result in valid reimbursement denials?
  • Leave of absence provisions and plan document eligibility provisions...

Plan Amendments – I had a dream once, about a Plan that had not had its plan document restated in 8 years, and, during that time, the Plan Sponsor had amended the plan 16 times. All amendments existed as separate documents, referencing one another from time to time, and, oftentimes, referencing various vendors that no longer worked for the Plan. Then, the Plan Sponsor came to me and hired me in November to restate the plan for a January 1 kick off. I woke up screaming. That kept me up at night.

Notifications (of material modification; open enrollment; HIPAA privacy notifications; etc.) – While many of these may not need to line up with a plan’s specific benefit grid, network alignment, or the definition of “maximum allowable,” you can easily see how a bit more paperwork, directly impacting the member’s understanding of a plan, can be cumbersome and can easily cause confusion if not handled carefully, especially when bundled into an envelope (or email) containing a plan document and an SBC!

Miscellaneous Vendor Contracts – Take everything discussed above and add in a few more. Time to turn up the volume! All the above is enough to strike fear into the heart of the most diligent and thorough paper pushing accountants, advisors, and attorneys. But, it is the price of admission and a piece of our business that we should be aware of and work through carefully. As a best practice, every Plan Sponsor should engage in expert gap reviews of all documents and should do so on a routine basis.

To conclude, and hopefully provide some closure and definition to my thoughts, I will leave you with this: our industry is complicated. There is no denying it. Let’s acknowledge it, be willing to criticize it, and even be willing to poke fun at it.

But, at the end of the day, let’s recognize that our industry – our platform – is the best. So, we owe it to each other, as stakeholders in this space, to work hard to accomplish the goal of aligning the documents that govern the administration of a self-funded health plan.

Should the first and foremost guardian of this alignment be the Plan Sponsor? Absolutely –and with expert guidance! We are all in this together and should strive to achieve harmony in a Plan’s governing documents, wherever possible, together. All boats rise.


The Phia Group's 2nd Quarter 2018 Newsletter


Phone: 781-535-5600 | www.phiagroup.com


 

The Book of Russo:
From the Desk of the CEO

It is busy… I mean really busy. From conferences to claim issues, never has The Phia Group seen the volume and variety that it is seeing now. That is why this month’s webinar on April 19th is a must-see event. We are witnessing new and unique claim issues, ranging from surrogacy to scary IRS notices being sent to employers across the country. This webinar will discuss what we have learned and what you can do to protect yourselves and your clients. It is only spring here in Boston but the heatwave of self-funding is being felt across Phia. By the way, I wanted to congratulate the following 8 employees of The Phia Group for officially being approved to attend the Future Leaders Track at the 2018 National SIIA Conference in late September.

• Toussaint Anderson
• Ulyana Bevilacqua
• Brady Bizarro
• Amanda Grogan
• Garrick Hunt
• Amanda Lima
• Maribel McLaughlin
• Victoria Pace

These fine people will represent our company at SIIA’s first foray into ensuring the future of self-funding. I would encourage all of you to identify the future leaders of your organization and send them to SIIA as well. Happy reading!

 


Service Focus of the Quarter: Plan Appointed Claim Evaluator (PACE)
Phia Case Study: Overpayment Schmoverpayment
Success Story of the Quarter: The Phia Group Saves an Employer Thousands of Dollars
Phia Fit to Print
From the Blogosphere
Webinars
Podcasts
The Phia Group’s 2018 Charity
The Stacks
Phia’s Speaking Events
Employee of the Quarter
Phia News

Register for The Phia Group's Next Webinar

4 Horsemen of the Plan-pocalypse

Nostradamus? Miss Cleo? The Phia Group? In a psychic feat of foresight, The Phia Group’s team has gazed into their crystal ball and identified four issues that may not presently be keeping you up at night, but will certainly be disturbing your slumber very soon. From being forced to pay for surrogate pregnancy and births, to the IRS actively issuing letters notifying employers of 2015 tax year penalties; from a new wave of fraud, errors, and abuse leading to heretofore unseen overpayments, to case law addressing the rights of plans to utilize reference based pricing – you’ve been warned! We predict this complimentary webinar, taking place at 1pm (EST) on April 19, 2018, will open your eyes. Miss this webinar at your own peril… You’ve been warned!

Click HERE to Register!

 

Service Focus of the Quarter: Plan Appointed Claim Evaluator® (PACE)

Making determinations on medical claim appeals is a frightening prospect. The process can involve complex factual, legal, and medical issues, and can distract an employer plan sponsor from its ordinary business functions, posing a significant resource drain. The PACE service allows the plan sponsor to shift fiduciary duty away, onto the PACE, for final, internal claim appeals. With PACE, plan sponsors and TPAs assign the riskiest fiduciary duty (that is, the power to make payment decisions in response to final, internal appeals), to The Phia Group. This authority carries with it the most risk, because it is this final payment directive that may be scrutinized upon external review or in the courtroom.

Self-funding veterans and novices alike will benefit from PACE. Groups that are moving from fully-insured or ASO arrangements can use PACE as a valuable tool to aid in the transition; these groups have never before been faced with such fiduciary liability - with the PACE, that daunting responsibility can be delegated to a neutral and capable third party. In addition to having a third party expert analyze all final, internal appeals, before they reach an external review, the PACE also ensures that legally mandated independent review organizations (IROs) are in place, and the PACE handles facilitation of external appeals with these IROs. Regardless of whether the PACE upholds or reverses a denial, the PACE's service continues to apply. This includes coordinating efforts with stop-loss, plan sponsors, brokers, and TPAs whenever these partners do not align. PACE is a way for the employer to be able to focus less on the complexities of its health plan, fiduciary duties, and stop-loss concerns, and more on what matters - its business. PACE is also a way for the payor to rest easy knowing that it is not unwittingly assuming fiduciary duties on final, internal appeals.

For years, self-funded plan sponsors and TPAs have asked how they can avoid the risks inherent in self-funding, while still enjoying the benefits of that plan structure. According to The Phia Group's CEO, Adam Russo, "With a PACE in place, we're taking a giant step in the right direction. It's a game changer." Contact Tim Callender at tcallender@phiagroup.com or 781-535-5631 to learn more about how PACE can help you.

 

Phia Case Study: Overpayment, Schmoverpayment!

The Phia Group was presented with a situation in which a TPA had processed a claim in error. The issue was one of eligibility; the TPA processed the claim as usual, without realizing that the member had in fact termed the prior week. The TPA had the information, but through a fairly common record update delay, the claim was paid at the appropriate out-of-network rate - but for a termed member.

The group's broker contacted the TPA and was somewhat upset at the erroneous claim processing. The TPA explained the circumstances - and the TPA's Administrative Services Agreement did not hold the TPA responsible - but the broker expressed interest in pursuing the matter, given the sizeable amount of money involved. The broker was also looking into having the group switch TPAs.

When this matter was brought to the attention of The Phia Group's consulting team, our first two actions were to try to diffuse the situation between the broker and TPA, and to try to recoup the overpayment to keep both sides happy.

As it happened, The Phia Group's dedicated overpayment team had a prior relationship with this particular provider, and our overpayment recovery specialists were able to recover $40,000.00 of the $42,000.00 erroneous payment. That recovery satisfied the broker and the group, and the TPA agreed to credit the group the remaining $2,000.00 as a gesture of good faith (and a smart business decision to boot).

The recovery obtained by The Phia Group's overpayment team not only salvaged $40,000.00 for the group, but it avoided a feud between a TPA and broker, and also helped the TPA keep a valuable block of business that it would otherwise have lost.

 


 

Fiduciary Burden of the Quarter: Following the Plan Documents…Unless…

Generally, it is fairly simple to comply with the duty to follow the terms of the plan documents. That important duty, however, applies only "insofar as such documents and instruments are consistent with the provisions of [ERISA]." In other words, you must follow the plan documents, unless the plan documents violate ERISA, in which case you must follow ERISA instead. The powers that be have interpreted this as applying not just to ERISA, but to all federal laws. The result is that federal law "overrides" any conflicting terms of the plan documents - so Plan Administrators are sometimes forced to ignore the terms of the plan documents in favor of following federal law.

So what does this mean? Well, if the plan documents have provisions that violate federal law, the fiduciary duty morphs from one requiring the fiduciary to comply with the terms of the plan documents to one requiring the fiduciary to comply with the law instead of the plan document.

An example we have seen are the new regulations promulgated under ACA Section 1557 regarding transgender surgery. There is a certain amount of legal discord at the moment surrounding the interpretation of these regulations, but the status quo is that self-funded health plans are not permitted to exclude transgender surgery, or they risk violation of the Affordable Care Act. Many employers, however, have taken a stance against this mandate, by excluding transgender surgery within their plan documents. This is a textbook instance where the fiduciary duty would change: if following the terms of the plan document would be noncompliant with other federal laws, then the fiduciary is required to follow those federal laws instead.

This can be a very tricky situation, and it emphasizes the notion that the plan documents should always be as compliant and current as possible to avoid having to analyze situations like this. As always, if you have questions about your plan documents, fiduciary duties, or how to reconcile the two, please contact PGCReferral@phiagroup.com.

 


Success Story of the Quarter: The Phia Group Saves an Employer Thousands of Dollars

The IRS has recently been enforcing the Employer Shared Responsibility Mandate (“employer mandate”) by sending letters to employers implicating that they may have violated the employer mandate rules and may owe a substantial penalty called an Employer Shared Responsibility Payment (“ESRP”). This employer mandate was put in place by the Affordable Care Act (“ACA”). The ACA requires Applicable Large Employers (“ALEs”) who have 50 or more employees to (1) provide minimum essential health coverage to all full-time employees and their dependents (or the employer will face a subsection (a) penalty); or (2) offer eligible employer-sponsored coverage that is “affordable” and meets “minimum value” (or the employer will face a subsection (b) penalty). Employers who receive these letters may have to pay the ESRP, but have a chance to respond to the letter before the penalty is mandated.

A client was presented with one of these letters from an employer. The employer was facing over $50,000.00 dollars in penalties if they did not respond to the letter properly and explain why they were/were not at fault. The IRS has specific guidelines of how to respond to these letters. This can become very daunting and confusing for employers facing these high penalties. The client reached out to The Phia Group for consultation. Attorneys Krista Maschinot and Erin Hussey analyzed the situation and explained what the employer may or may not have done wrong to receive this large employer mandate penalty, and with their consultation, the employer was able to identify their mistake and properly respond to the IRS letter. After the employer explained their mistake and properly responded to the IRS letter, the IRS sent a second letter to the employer which lowered their penalty to less than $2,500.00, saving the employer thousands in penalties.

Disclaimer: As these forms are heavily based in IRS regulations and taxation, we strongly recommended to the broker that the employer should discuss this with their tax advisor and/or the entity that assisted in preparing their tax forms.
 


 

Phia Fit to Print:

• Self-Insurers Publishing Corp. - Buyer Beware - No Good Deed Goes Unpunished - January 3, 2018

• Money Inc. - Too Good to Pass Up: How we Over Come the Loss of the Individual Mandate - January 24, 2018

• Money Inc. - The Best of Times and the Worst of Times… How Imperfect Regulatory Action May Still Create Opportunities for Self-Funding - February 22, 2018

• Self-Insurers Publishing Corp. - Trump Tax Bill Signals the Swan Song for Obamacare's Individual Mandate - March 4, 2018

• Money Inc. - Freedom Blue: Why the Trump Administration Picked Obamacare over Idaho - March 29, 2018



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From the Blogosphere:

Contraceptive Update - Appeals and Intervenors There is a process that must be followed before a party can intervene.

What do All These New Paid Sick Laws Mean for Employers? The regulations vary by state (and city).

Even the Best Plans can Backfire! It's very important in subrogation cases to consider all options.

Your Plan isn't a Cadillac …Yet. The ACA Health Insurance Provider Tax is applicable for fully-insured plans

 

To stay up to date on other industry news, please visit our blog.



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Webinars

4 Horsemen of the Plan-pocalypse

Nostradamus? Miss Cleo? The Phia Group? In a psychic feat of foresight, The Phia Group's team has gazed into their crystal ball and identified four issues that may not presently be keeping you up at night, but will certainly be disturbing your slumber very soon. From being forced to pay for surrogate pregnancy and births, to the IRS actively issuing letters notifying employers of 2015 tax year penalties; from a new wave of fraud, errors, and abuse leading to heretofore unseen overpayments, to case law addressing the rights of plans to utilize reference based pricing - you've been warned! We predict this complimentary webinar, taking place at 1pm (EDT) on April 19, 2018, will open your eyes. Miss this webinar at your own peril… You've been warned!

Click HERE to Register!

On March 20, 2018, The Phia Group presented, "Transparency: Using it to Your Advantage," where we discussed the need for, and effects of, contractual and price transparency on the self-funded industry - and how health plans, TPAs, and brokers can use transparency to their advantage.

On February 27, 2018, The Phia Group presented, "Evolve or Dissolve - Responding to Today's Tax Law to Save the Health Benefit Plan Industry Tomorrow," where we discussed what you need to know about the new law, and how to navigate the treacherous path that lies ahead.

On February 22, 2018, The Phia Group presented, "Keeping it Under Wraps: What the Networks Don't Advertise," where we discussed how the importance of cost-containment is at an all-time high.

On January 30, 2018, The Phia Group presented, "Plan on Saving by Saving Your Plan - Applying Lessons Learned to Create the Perfect Plan Document," where we discussed The Phia Group's Flagship Template.

On January 18, 2018, The Phia Group presented, "A Taxing Time: The Tax Bill's Impact on Self-Insurance," where we discussed the latest tax law.

Be sure to check out all of our past webinars!



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Podcasts:

•On March 23, 2018, The Phia Group presented, “Loopholes, Untouchables, and An Unlikely Ally,” where Adam, Ron, and Brady went around the horn discussing a few hot button topics.

•On March 16, 2018, The Phia Group presented “
Partners in Empowerment – A Prescription for Savings,” where Ron and Brady were thrilled to interview LG Hanzel of Rx Results.

•On March 1, 2018, The Phia Group presented “
Red Cross Blood Drive Special Episode,” where The Phia Group in partnership with the Red Cross hosted an on-site blood drive. Ron Peck interviewed members of The Phia Group staff and Red Cross regarding personal experiences, the Phia event, and the ever present need for donors.

•On February 26, 2018, The Phia Group presented “
3 Scoops of Knowledge,” where Adam, Ron and Brady celebrated the forthcoming change in seasons and warming weather, by each selecting a unique topic that was bugging them, and offered their opinions regarding how we should react.

•On February 16, 2018, The Phia Group presented “
Fireside Chat with The President,” where our first Empowering Plans guest, the Self-Insurance Institute of America’s CEO and President, Michael Ferguson, sat down with Adam, Ron and Brady to discuss everything – from past wins and losses, to plans for 2018.

•On February 7, 2018, The Phia Group presented “
Disruption or Not?,” where our hosts discussed the recent announcement that Amazon, Berkshire Hathaway and JPMorgan are looking to collaborate on “health care.”

•On January 29 2018, The Phia Group presented “
Game-changers” where our hosts discussed Adam’s recent travels and review events.

•On January 22, 2018, The Phia Group presented “
Mandate? We don’t need no stinking mandate,” where Adam, Ron, and regular co-host – Brady Bizarro – addressed the new tax law, elimination of the individual mandate, and how it may impact benefit plans of all types.

•On January 10, 2018, The Phia Group presented “
Lightning Strikes Twice – Top 2017 Issues Impacting 2018,” where the “Phia Group Boys” freestyled as they shared the issues they felt defined 2017 and are likely to influence 2018.

 

Be sure to check out all of our latest podcasts!



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The Phia Group’s 2018 Charity

At The Phia Group, we value our community and everyone in it. As we grow and shape our company, we hope to do the same for the people around us.

The Phia Group's 2018 charity is the Boys & Girls Club of Brockton.

The mission of The Boys & Girls Club is to nurture strong minds, healthy bodies, and community spirit through youth-driven quality programming in a safe and fun environment.

The Boys & Girls Club of Brockton (BGCB) was founded in 1990 to create a positive place for the youth of Brockton, Massachusetts. It immediately met a need in the community; in the first year alone, 500 youths, ages 8-18, signed up as club members. In the 25 years since, the club has expanded its scope exponentially by offering a mix of Boys & Girls Clubs of America (BGCA) nationally developed programs and activities unique to this club.

Since their founding, more than 20,000 Brockton youth have been welcomed through their doors. Currently, they serve more than 1,000 boys and girls ages 5-18 annually through academic year and summertime programming.

 

On Thursday, February 8th, CEO of The Phia Group, Adam Russo, invited 50+ children from The Boys & Girls Club of Brockton to a Seussical play at the Inly School in Adam's hometown of Scituate, MA. It was truly a pleasure to see the look on their faces while watching the play.

 

 

 

The Phia Group invites its staff to donate various items for the benefit of The Boys and Girls Club of Brockton. For more information or to get involved, visit www.bgcbrockton.org.



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The Stacks

Trump Tax Bill Signals the Swan Song for Obamacare's Individual Mandate

By: Sean Donnelly, Esq. - March 2018 - Self-Insurers Publishing Corp.

The "tax" bill that Congress passed in late December was somewhat of a wolf in sheep's clothing from a health care perspective. It certainly overhauled the tax code and instituted tax cuts for corporations and many American taxpayers, but it also doubled as a thinly veiled health care bill through its repealing of Obamacare's individual mandate. Authors of the tax bill postulated that such a repeal could save the federal government more than $330 billion over the next decade, as fewer Americans will end up receiving subsidies or Medicaid, savings that could then be used to finance the bill's tax cuts and lower tax rates. The tax bill was not the complete eradication of Obamacare that the Trump administration had set its sights on during the first year of Trump's presidency, but the dismantling of the individual mandate marks the first removal of a key pillar in the Obamacare foundation.

Click here to read the rest of this article


The Best of Times and the Worst of Times… How Imperfect Regulatory Action May Still Create Opportunities for Self-Funding

By: Jen McCormick, Esq. - February 2018

Regulators have been busy over the course of the past few months. Between the issuance of executive orders, a tax bill, and state regulatory action, employers are scrambling to understand the implications. And while regulatory action has been quick, it has not necessarily been thorough, creating possibilities and opportunities for self-funded health plans. Upon review of the various regulations, it seems new incentives for the creation of self-funded employer plans now exist. Employers may investigate taking advantage of this environment to form, create, or modify their self-funded benefit plans. Let's examine certain recent regulatory developments.

Click here to read the rest of this article.

 

Buyer Beware - No Good Deed Goes Unpunished

By: Ron E. Peck, Esq. - January 2018 - Self-Insurers Publishing Corp.

Employers and their advisors may soon find themselves accused of breaching their fiduciary duty if they continue to allow their benefit plans to pay inflated rates for medical services, without any justification for the excessive prices. Blindly paying fees that are not revealed until after the service is provided, to practitioners who cannot explain why their rates are many times more than comparable providers of equal or greater skill, is not a prudent use of plan assets and does violate one of the core tenets of the Employee Retirement Income Security Act of 1974 ("ERISA") and fiduciary law.

Click here to read the rest of this article.

 

To stay up to date on other industry news, please visit our blog.

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Phia’s 2018 Speaking Events:

Adam Russo’s 2018 Speaking Engagements:

• 1/23/18 - Q4 Intelligence Conference - Tampa, FL
• 2/2/2018 - Benefit Intelligence School District Conference - Phoenix, AZ
• 3/7/2018 - SIIA Self-Insured Health Plan Executive Forum - Charleston, NC
• 3/9/2018 - CGI Business Solutions Seminar - Manchester, NH
• 3/14/2018 - Pareto StructuRE Meeting - Park City, UT
• 4/12/2018 - Caprock Health Care Forum - Dallas, TX
• 4/25/2018 - Berkley Captive Symposium - Grand Cayman Islands
• 4/26/2018 - Innovative Risk - Grand Cayman Islands
• 4/30/2018 - World Health Care Congress - Washington, DC
• 5/17/2018 - Prairie States Broker Event - Chicago, IL
• 6/21/2018 - GBSI Conference - Springfield, MO
• 6/26/2018 - Leavitt Annual Event - Big Sky, MT

Ron Peck’s 2018 Speaking Engagements:

• 1/25/2018 - HealthFirst TPA Client Conference - Tyler, TX
• 3/6/2018 - SIIA National Conference - Charleston, SC
• 3/7/2018 - CGI Business Solutions Seminar - Manchester, NH
• 3/23/18 - Health Rosetta - Module 5: Next-Gen Plan Design - Boston, MA

Tim Callender’s 2018 Speaking Engagements:

• 2/14/2018 - BevCap Captive Group, 10th Anniversary Meeting - Kona, HI
• 4/25/2018 - Cypress University - Las Vegas, NV
• 5/7/2018 - UBA Spring Conference - Chicago, IL
• 5/16/2018 - Sun Life MVP Forum - Kansas City, KS
• 5/24/2018 - Pareto Captive Services, Contrarian Re Captive Meeting - Nashville, TN
• 6/25/2018 - Leavitt Conference - Big Sky, MT
• 7/17/2018 - HCAA TPA Summit - Minneapolis, MN

Jen McCormick’s 2018 Speaking Engagements:

• 4/17/2018 – Texas Association of Benefit Advisors – Dallas, TX
• 5/16/2018 – IOA RE – Indianapolis, IN

 

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Get to Know Our Employee of the Quarter: Catherine Dowie

Congratulations to Catherine Dowie, The Phia Group's Q1 2018 Employee of the Quarter!

When we think of passion, we think of Catherine. Not only is she working full time, but she is also going to law school full time at night. Even with all the work she has from attending law school, she still manages to find time at night, after school and on weekends, to work. Anyone can always go to her with a question on case law, and if she does not have an answer right away, she is always able to find an argument on the Plan's side.

 

 

Congratulations Catherine and thank you for your many current and future contributions.

 


 

Phia News

2017 Community Partner of the Year Award!

The Phia Group and Adam Russo were recently awarded the "2017 Community Partner of the Year Award" in Easton, Massachusetts, on March 1, 2018. The Community Partner of the Year Award is presented annually to a company, foundation, or community organization that has made significant contributions to advance the work of the Boys & Girls Club of Brockton. In 2017, The Phia Group gave more than just financial support to propel the programs forward, and their employees and leadership gave generously of our time and talents to create special, lasting memories for the boys and girls throughout the year.

 

 

The American Red Cross Visits Phia!

The American Red Cross came to visit The Phia Group and 18 of our employees successfully donated a pint of blood. With those 18 donations, we were able to save 54 lives. We take great pride in knowing the impact this can have. To learn more about the American Red Cross and how you can help save a life, make sure you check out The American Red Cross website.

 

Job Opportunities:

• Health Benefit Plan Administration - Attorney
• Consultant I

See the latest job opportunities, here: https://www.phiagroup.com/About-Us/Careers

 

Promotions

• Brady Bizarro was promoted from Staff Attorney to Director, Healthcare Attorney

• Amanda Lima was promoted from Medical Bill Negotiator to Team Lead, Provider Relations

• Ulyana Bevilacqua was promoted from Consultant I to Supervisor, PGC

• Jillian Painten was promoted from Claim Recovery Specialist IV to Team Leader

• Toussaint Anderson was promoted from Project Manager, PGC to Manager, PDM

• Kelly Dempsey was promoted from Staff Attorney to Director, Independent Consultation & Evaluation (ICE)

• Sabrina Centeio was promoted from Case Investigator to Claim Recovery Specialist III

• Amanda Grogan was promoted from Sr. Claim Recovery Specialist to Team Lead

• Kerri Sherman was promoted from Team Lead, CI / BI to Sr. Team Lead, CI / BI

• Cara Carll was promoted from Team Lead, Recovery MPC/WC to Sr. Team Lead, CA/CSR

• Lisa Tangney was promoted from Manager, Accounting to Controller

• Rose Jardim was promoted from Accounting Administrator to Team Lead, Accounting

• Hemant Dua was promoted from Dir. Applications & Business Intelligence to Sr. Director of Technology

• Garrick Hunt was promoted from Sales Executive to Sales Manager
 

New Hires

• Grace Barron was hired as a Customer Care Representative

• Jacob Falkof was hired as a Customer Care Representative

• David Clasby was hired as an IT Technologist

• Cindy Royle was hired as a Legal Assistant
 

Fun at Phia:

The Phia Family is one good-looking group of footballers! Our Superbowl Party was a hit and we thank all those who participated. Although we did have fans from both teams in the office that day, there were no casualties; and that in itself was a huge success!



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info@phiagroup.com
781-535-5600

The Stacks - 2nd Quarter 2018

Trump Tax Bill Signals the Swan Song for Obamacare’s Individual Mandate
By: Sean Donnelly, Esq.

Background

The “tax” bill that Congress passed in late December was somewhat of a wolf in sheep’s clothing from a health care perspective.  It certainly overhauled the tax code and instituted tax cuts for corporations and many American taxpayers, but it also doubled as a thinly-veiled health care bill through its repealing of Obamacare’s individual mandate.  Authors of the tax bill postulated that such a repeal could save the federal government more than $330 billion over the next decade as fewer Americans will end up receiving subsidies or Medicaid, savings that could then be used to finance the bill’s tax cuts and lower tax rates.1  The tax bill was not the complete eradication of Obamacare that the Trump administration had set its sights on during the first year of Trump’s presidency, but the dismantling of the individual mandate marks the first removal of a key pillar in the Obamacare foundation.

The individual mandate, one of the linchpins of the Affordable Care Act, required Americans who did not otherwise qualify for an exception to obtain minimum essential health coverage.  Those Americans who did not have minimum essential health coverage for any month during the year were required to pay a penalty during tax season.  This mandate was essential to pressure younger and healthier Americans to purchase insurance coverage, thereby bringing balance to the risk pools and stabilizing the health insurance marketplace.   

The concept of the individual mandate was actually spawned by conservative policymakers who posited that health coverage should be mandatory in order to produce a sustainable insurance pool with the right balance of healthy and sick individuals to properly spread the risk.  The underlying theory was that by compelling healthier Americans to enter the marketplace and obtain coverage, premiums would begin to decrease across-the-board as the influx of healthier participants would help to absorb the costs of those less healthy and more expensive participants.  In 2006, Mitt Romney, Massachusetts’ Republican governor, was able to convince the largely Democratic state to adopt an individual mandate as part of its health care overhaul.  The relative success of the mandate’s Massachusetts audition eventually paved the way for then-President Obama to include an individual mandate as a vital component of the 2010 Affordable Care Act.  Even as the Trump tax bill begins to take effect this year, the individual mandate will still remain in effect in 2018.  The repeal of the individual mandate won’t actually take effect until 2019.  Accordingly, the mandate’s penalties will continue to be levied in 2018 unless the Trump administration otherwise attempts to have them waived.

A Short and Bumpy Ride

The individual mandate faced intense partisan scrutiny both before and after the passage of the Affordable Care Act.  Republicans viewed the mandate as an unconstitutional scheme to coerce Americans to participate in a commercial activity, an act that they argued amounted to an impermissible overreach of Congress’ powers to regulate commerce.  Following the enactment of the Affordable Care Act, a total of twenty-seven states challenged the law’s constitutionality in federal court.2  In the seminal case of National Federation of Independent Business v. Sebelius,3 the Supreme Court agreed with the Republican position and held that the individual mandate was outside of the scope of Congress’ authority to regulate commerce because the Constitution’s Commerce Clause does not afford Congress the power to force people to engage in commerce.  However, the individual mandate ultimately managed to withstand judicial scrutiny as the Supreme Court held in its 5-4 decision that the mandate penalty amounted to a permissible tax that Congress could lawfully levy under its taxing and spending power.

Even though the mandate survived its main Constitutional challenge, it nonetheless sustained a shellacking in the court of public opinion.  A tracking poll conducted by Kaiser Health4 just a week after the presidential election in November 2016 found that sixty-three percent of Americans viewed the individual mandate as “very unfavorable” or “somewhat unfavorable.”  Comparably, only thirty-five percent of Americans viewed the mandate as “very favorable” or “somewhat favorable.”  A whopping sixty-one percent of Republicans polled perceived the individual mandate as “very unfavorable.”            

The Heritage Foundation, the conservative think tank that many credit as the originator of the concept of the individual mandate, renounced any affiliation with Obamacare’s iteration of the mandate and opposed it as an unconstitutional anachronism no longer considered necessary to achieve universal coverage.5  Notable among those who continued to champion the repeal of Obamacare and its individual mandate in the wake of the Sebelius decision was Mitt Romney, the very same architect behind the individual mandate’s debut in Massachusetts.  The mandate was branded by its challengers as an un-American and officious overreach of government authority, a pariah in the land of free people, free markets, and free choice.     

Broad Implications of the Repeal

Despite President Trump’s pronouncement that the tax bill “essentially repealed Obamacare,” the Affordable Care Act will continue to be the law of the land.  Left untouched in the wake of the tax bill are the federal income-based subsidies intended to assist American consumers with purchasing individual policies, the expansion of Medicaid for low-income adults, the prohibition against denying coverage to consumers with pre-existing health conditions, and the edict that insurers must cover those health benefits deemed “essential” by the Department of Health and Human Services.  Also surviving is the employer mandate, which requires certain employers to provide affordable health care coverage to their employees or else face a penalty.  However, the repeal of the individual mandate will undoubtedly trigger some significant shifts in the health care landscape.              

The majority of Americans won’t be personally impacted, since most people already obtain health insurance either through their employer or through a public program such as Medicare, and thus were never really at risk of being subjected to the individual mandate penalty.  Nevertheless, for those Americans who do not receive health insurance from an employer or public program and who instead purchase coverage from an Obamacare health exchange, such individuals are now free to forego their coverage entirely without fear of having to pay a penalty.  Those who are completely healthy and those who are financially well-off may now decide to ditch their health coverage as being needless or expendable.  Comparably, even those who are sick or less financially stable may ultimately decide not to carry health insurance without the looming threat of the penalty to force them into action.

Consequently, the Congressional Budget Office (CBO) is estimating that the individual mandate repeal will result in thirteen million fewer Americans being insured within the next decade.  The CBO is also forecasting that the premiums for coverage obtained on the health exchanges will rise approximately ten percent per year over the next decade due to healthy participants scattering from the markets without fear of the penalty and leaving the sicker participants behind to overburden the risk pools.  Some health policy experts are expecting that the removal of the individual mandate will simultaneously give rise to increased premiums and decreased coverage rates, ultimately leading to a market collapse.7  In order to head off this potential outcome, lawmakers in states such as California are already looking to push legislation that would adopt versions of the individual mandate as state law, à la Massachusetts.                                     

Overtones for Employer-Sponsored Plans

As a result of the repeal of the individual mandate, the CBO is projecting that fewer employees will be joining their employer’s self-funded plans with the mandate’s penalty no longer in play.  Specifically, the CBO anticipates that the removal of the individual mandate will result in three million fewer Americans having coverage through their employer over the next decade.8  Accordingly, employers may begin to experience a decline in health plan enrollees. 

As noted earlier, however, the Affordable Care Act’s employer mandate will remain after the enactment of the Trump tax bill.  Employers subject to the mandate, those with fifty or more “full-time equivalent employees,” face penalties if they fail to offer minimum essential coverage that provides minimum value and at least one full-time employee receives a premium tax credit for purchasing individual coverage on the health insurance marketplace.  Timothy Jost, a law professor at the Washington and Lee University School of Law, deduced that if fewer Americans end up seeking coverage through the health care exchange, then it follows that some employers may be able to avoid paying the employer mandate penalties that are only levied if at least one full-time employee receives a premium tax credit through the exchange.  In this way, the individual mandate repeal is somewhat of a double-edged sword; fewer employees may end up enrolling in employer-sponsored plans, but fewer may also look to purchase coverage on the exchange, thereby reducing the risk to their employers who would otherwise be exposed to the strict penalties imposed by the employer mandate.  Still, Jost surmises that as over 150 million Americans already have health coverage through their employers, the “effects of the individual mandate repeal on the employer-sponsored market will be marginal.”9

The repercussions of the repeal will certainly be felt hardest in the individual market, but employer-sponsored plans will likely experience some fallout as healthier, lower-risk employees begin to question if it might make more financial sense to withdraw from their plans entirely.  As these healthier, less expensive employees begin to disenroll, the all-important balance each plan seeks to achieve will be disrupted as the scales start to tilt back towards the sicker, higher-risk and more expensive employees.  A resulting risk pool made up of a disproportionate number of the costliest employees is the kiss of death for an employer-sponsored plan.  As employees are no longer “mandated” to enroll in the plans offered by their employers, self-funded plans will need to devise more alluring and increasingly innovative methods to retain their healthiest participants.  With the individual mandate repealed, the driving force of the mandate’s penalty can no longer be relied upon to funnel low-risk lives towards enrollment.  Employer-sponsored plans will need to fill this void by offering more comprehensive benefits, designing more creative incentive programs, and prioritizing enrollee engagement in order to secure these vital, low-cost lives.                       

1See Congressional Budget Office, Repealing the Individual Health Insurance Mandate: An Updated Estimate (November 2017), https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/53300-individualmandate.pdf.

2Park, Katie & Rolfe, Rebecca (2013, September 23). How states approached health-care reform. The Washington Post. Retrieved from http://www.washingtonpost.com/wp-srv/special/politics/state-healthcare-progress/

3See 567 U.S. 519 (2012).

4Kirzinger, Ashley, Sugarman, Elise & Brodie, Mollyann (2016, December 01). Kaiser Health Tracking Poll: November 2016. The Henry J. Kaiser Family Foundation. Retrieved from https://www.kff.org/health-costs/poll-finding/kaiser-health-tracking-poll-november-2016/.

5Butler, Stuart M., Ph.D. (2012, February 06). Don’t Blame Heritage for ObamaCare Mandate. The Heritage Foundation. Retrieved from https://www.heritage.org/health-care-reform/commentary/dont-blame-heritage-obamacare-mandate.

6See Congressional Budget Office, Repealing the Individual Health Insurance Mandate: An Updated Estimate (November 2017), https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/53300-individualmandate.pdf.

7Sanger-Katz, Margot (2017, December 21). Requiem for the Individual Mandate. The New York Times. Retrieved from https://www.nytimes.com/2017/12/21/upshot/individual-health-insurance-mandate-end-impact.html.

8See Congressional Budget Office, Repealing the Individual Health Insurance Mandate: An Updated Estimate (November 2017), https://www.cbo.gov/system/files/115th-congress-2017-2018/reports/53300-individualmandate.pdf.

9Jost, Timothy (2017, December 20). The Tax Bill And The Individual Mandate: What Happened, And What Does It Mean? Health Affairs. Retrieved from https://www.healthaffairs.org/do/10.1377/hblog20171220.323429/full/.

iBennett, Brian (2017, December 20). ‘We have essentially repealed Obamacare,’ Trump says after tax bill passes. Los Angeles Times. Retrieved from http://www.latimes.com/politics/washington/la-na-pol-essential-washington-updates-trump-sees-an-end-to-obamacare-in-the-1513794883-htmlstory.html.

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The Best of Times and the Worst of Times … How Imperfect Regulatory Action May Still Create Opportunities for Self-Funding
By: Jen McCormick, Esq.
 

Regulators have been busy over the course of the past few months. Between the issuance of executive orders, a tax bill, and state regulatory action, employers are scrambling to understand the implications. And while regulatory action has been quick, it has not necessarily been thorough, creating possibilities and opportunities for self-funded health plans.

Upon review of the various regulations, it seems new incentives for the creation of self-funded employer plans now exist.  Employers may investigate taking advantage of this environment to form, create, or modify their self-funded benefit plans.  Let’s examine certain recent regulatory developments.

Executive Order 13813

On October 12, 2017 President Trump issued Executive Order 13813 to save “the American people from the nightmare of Obamacare.” While this executive order did not modify any laws or regulations, it did direct the Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Department of the Treasury to issue proposed regulations concerning expanded coverage under health reimbursement arrangements (HRAs) and association health plans (AHPs).

HRAs are tax advantaged arrangements subject to the Affordable Care Act (ACA) regulations. As a result, an HRA may not impose annual dollar limits on benefits unless it is integrated with a group health plan. An exception exists, however, for small employers. Pursuant to a provision within the 21st Century Cures Act, certain small employers may offer a Qualified Small Employer Health Reimbursement Arrangement (QSEHRA).  This provision allows small businesses (i.e. employers with under 50 employees) to reimburse employees for out of pocket costs and premiums on the individual market. The regulations, however, impose tight restrictions on the employers’ ability to offer a QSEHRA.

Based on the current regulations and guidance for QSEHRAs issued by the Internal Revenue Service (IRS) in Notice 2017-67, an employer offering any group health plan is ineligible.  As a result, even employers who only offered group dental coverage, for example, would be disqualified.  The IRS did request comments on this guidance (due January 19, 2018).

The anticipated comments on Notice 2017-67, combined with the executive order directing the agencies to propose regulations expanding opportunities for employers to offer an HRA, may loosen current restrictions and expand the employer eligibility requirements.  Guidance is still pending, but the proposed regulations could present options for self-funding which do not currently exist.

Proposed DOL Regulations

In addition to the expansion of HRAs, the executive order directed regulators to increase access to health care by allowing a broader pool of employers to create AHPs. In early January 2018, responding to the executive order, the DOL issued proposed regulations to extend the circumstances under which an association may function as an employer under the Employee Retirement Income Security Act (ERISA).

Currently, coverage provided via an AHP is regulated pursuant to the same standards applicable to the individual and small employer health insurance market.  Under ERISA, an AHP’s reach is currently limited to circumstances where it is an employer sponsored plan. Specifically, association members must share a common interest, connect for reasons other than providing health insurance, exercise sufficient control over the health plan, and have at least one non-business owner employee.

The proposed rules may be game-changing for working owners (i.e. sole proprietors and self-employed individuals), allowing them to function as both the employer – for purposes of joining the association – and as the employee – for purposes of being covered by the plan.  This unique dual status could allow working owners to participate in association health plans, and the adjustment could allow a new class of individuals (and potentially attract a large and previously ineligible pool of individuals) to self-funding.

Additionally, the proposed regulations contemplate the formation of an association for the purpose of offering health insurance. The rule does not impose prohibitions on forming new associations (or specify size limitations), but it does provide formal organizational requirements for associations. These newly formed associations would need affordable health insurance options, and may want to explore the benefits of self-funding. This could also create a new pool of entities for self-funding.

Tax Cuts and Jobs Act

In December 2017, the Tax Cuts and Jobs Act (Act) was signed into law, reforming both individual and corporate income tax issues in the most sweeping and drastic changes to the Tax Code since 1986.

While the Act maintains 7 tax brackets for individuals, it reduces the rates and increases the thresholds on the brackets for individuals.  Potentially even more significantly, the Act reduces the individual mandate penalty to $0 (as of January 1, 2019). While the elimination of the individual tax penalty will likely have a significant negative impact on employers, and their employer sponsored health plans, the greater fear is that if individuals are no longer required to have coverage, the healthy, low risk individuals will terminate coverage altogether (whether individual or employer based). Without healthy lives the risk pools will suffer.

While the Act affects the individual mandate, it does not alter current employer mandate requirements; employers are still required to offer affordable coverage meeting minimum value requirements, or face an excise tax. This is troubling for employers.  If, with the reduction of the individual mandate penalty to $0 employees are effectively no longer required to maintain coverage, employers anticipate covering a less balanced risk pool, making (still) mandated employer coverage more expensive.

While the individual and employer mandate were intended to work together to increase access to care and balance risk, the elimination of the individual mandate does not fully undermines the continued value of offering employer sponsored coverage as an employee benefit.  Employers still recognize the culture and corporate benefits that attract and retain a talented work force, like employee health plans. Many employees (even healthy ones) value the benefit of comprehensive healthcare and the elimination of the individual mandate will not deter them from continuing coverage under an employer plan, or seeking an employer that provides one.

This does mean, however, that employers will need to be creative and flexible to counterbalance the potential new costs. One way to offset costs would be to create a tailored plan, designed specifically for the individuals that value healthcare as an employee benefit, and the best way to offer flexibility is via a self-funded plan.  This might be an opportunity to attract more employers who are concerned about rising costs and investigating new solutions.  Only with self-funding can an employer implement a targeted health plan that is loaded with unique benefits and creative cost-containment methodologies.

The Act also creates tax savings for businesses by slashing the corporate income tax rate from 35% to 21%, and creating a 20% deduction for qualified business income (QBI). While the specifics of the business tax changes are beyond the scope of this discussion, and the determination of QBI is not a straightforward analysis, the takeaway is that these tax benefits should (in theory) generate opportunities for employers to save on their tax bill.  With the savings, employers invest in more creative employee benefits, like self-funded healthcare plans.

Despite the complexity of the Act and the continued uncertainty of some of its implications, the potential opportunities for self-funding should not be overlooked.  Employers should discuss the impact of the Act on their individual situation with their tax advisors to better understand planning opportunities.

State Action

In response to the Act’s repeal of the individual mandate, certain states are taking action. For example, a Maryland proposal would require individuals to have insurance or pay a penalty of 2.5% of their income or $696 (whichever is greater).   The imposition of insurance mandates at the state level would encourage participation in employer plans, making employer sponsored coverage an attractive option and broadening the risk pool.   If states like Maryland join Massachusetts in mandating coverage it could positively impact self-funding.  More individuals would be looking for cost effective health plan options, something that an employer with a self-funded plan would be able to provide.

Summary

While recent regulatory developments have been swift, leaving anxiety over their interplay and interaction, employers should look for opportunities to embrace change as it relates to benefits they must offer (i.e. employers are still subject to the employer mandate), and those that could be advantageous or strategic to offer.

With new challenges come new opportunities for HRAs, AHPs, and employers under the executive orders, proposed DOL regulations, tax reform, and state level developments.  Self-funding, with unmatched flexibility for employers of all sizes, could be a cornerstone of the solution to reduce costs in the provision of healthcare.

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Buyer Beware – No Good Deed Goes Unpunished
By: Ron E. Peck, Esq.

Employers and their advisors may soon find themselves accused of breaching their fiduciary duty if they continue to allow their benefit plans to pay inflated rates for medical services, without any justification for the excessive prices.  Blindly paying fees that are not revealed until after the service is provided, to practitioners who cannot explain why their rates are many times more than comparable providers of equal or greater skill, is not a prudent use of plan assets and does violate one of the core tenets of the Employee Retirement Income Security Act of 1974 (“ERISA”) and fiduciary law.

Employers who choose to provide quality health insurance for their employees are generally performing an act of generosity.  Certainly studies show that employers who offer health benefits recruit and retain the best employees, but not all benefit plans are equal - and those employers who choose to offer more than the mandated minimum coverage are indeed combining generosity with good business sense.

As mentioned, however, not all benefit plans are the same.  For many, purchasing what we label as “fully funded” or “fully insured” traditional insurance, is enough.  For these consumers, risk aversion is king, and they will pay a premium (more likely than not more costly than their employees’ health expenditures) to an insurance carrier.  In exchange for that premium, said carrier will take on the risk associated with paying the employees’ medical bills.  Is there a chance some catastrophic claim, injury, or illness will cause the total medical expense to exceed the collective value of the premium?  Sure.  Is it likely?  No.  Insurance carriers are in the business of assessing risk, and calculating premium that will earn profit.

For other employers less concerned with risk, the decision to keep the profit that would otherwise be paid to the carrier, and fund only the actual medical expenses, leads them to engage in the act of self-funding or self-insuring.  It is to those employers that I now direct my commentary.

Studies have shown time and again that employers who self-fund their benefit plan are more likely to save money over five years of doing so, when compared to a comparable fully insured policy.  This is due in part to customizing the plan to address only that population’s needs, adjusting benefits as the data requires, quickly implementing cost containment programs, shopping around for the best vendors, stop loss, and other elements of the plan, and otherwise ensuring that a customized approach trims the fat and applies each plan dollar where it will do the most good.  So, you ask, if self-funding is such a panacea, why doesn’t everyone do it?

The answer is multifaceted.  First of all, if you plan to provide benefits to a population with high medical expenses, you may benefit from fully insuring and working with the carrier to spread the risk over their entire risk pool.  A self-funded employer takes on the entire plan’s expense, with few exceptions.  Next, some employers prefer to pay “more” when that amount is something they can afford, to avoid the risk of paying “MORE” when that amount is something they cannot afford (even if the likelihood of such a massive claim is slim).

Another consideration employers seeking to self-fund must consider (but few sadly do) is the matter of fiduciary authority.  Indeed, ERISA dictates, among other things, that an employer who self-funds a benefit plan either acts as or appoints a plan administrator.  That administrator is a fiduciary of the plan and its members, with a very serious legal obligation to perform numerous tasks – all with the plan’s best interest in mind.  Make one wrong move, and you’ll not only have to fix the damage you cause, but potentially be liable for up to treble-damages.

It is true that a self-funded plan administrator can transfer some or all of their fiduciary duties – meaning they share the burden – but most agree that at best the plan administrator is still responsible to monitor that assignee’s actions, and at worst, they maintain the burden as well.

As a result, employers who self-fund are not only at risk for the medical bills they will pay on their employees’ behalves, but are also at risk of being deemed to have “breached” their fiduciary duty if and when they make a mistake resulting in expenditures not in the best interest of the plan, and take action not in accordance with the terms of the plan document.

This may not sound like a big deal to you.  You may be saying, “Ron!  I ain’t afraid of no breach!”  Indeed; it would be great if all we had to do was follow the terms of the plan document like the instructions that come with your kid’s new toy.  Yet, like those instructions, saying is easier than doing; (where did I put that screw driver)?  This is particularly true in today’s self-funded industry.  Why?  Because things are so good!  Because today is a great time to be self-funded.  What???  At this point you should be thoroughly confused.  I did just say that today is the riskiest time to be a plan fiduciary because it is the best time to be a plan fiduciary.  Let me explain.

More so now than ever before, innovators are developing new services, products, and methodologies to maximize benefits while minimizing costs.  They are taking advantage of the self-funded plan structure, using our ability to customize, and targeting the high cost claims while increasing coverage elsewhere.  Everything is being examined and new approaches are being applied to old issues and new.  From medical tourism, to carve outs.  From technologically advanced subrogation tactics to reference based pricing network alternatives.  These are just a few examples of new and amazing ideas helping self-funded plans to evolve.  Unfortunately, just like Kevin McCallister (Macaulay Culkin) who, in that 1990 classic film, is left “Home Alone” when the rest of his family rushes out the door to embark on an exciting adventure… so too are plan administrators and their supporting cast rushing into fun and exciting adventures without making sure their plan document is along for the ride.

Too often, these self-funded benefit plans – which are controlled by the terms of their plan document – implement a new, shiny service, product, or process and forget to update their plan document to match.  The plan document is how the plan administrator communicates to the plan members (current and prospective), providers, department of labor, etc., what the plan does and doesn’t do – and sets forth the terms by which people decide whether to enroll and contribute their hard earned money in exchange for membership.  If the plan in practice doesn’t match the plan in writing, that is bad news.

Many self-funded employers believe that by hiring brokers, third party administrators, and advisors, they can somehow protect themselves from this fiduciary threat.  Yet, case after case has shown that – even though the broker, TPA, and the rest may ALSO be a fiduciary – the employer / plan administrator is still going to come along for the ride.

The case that has “set me off” and gotten me to head down this mental-path is the case of Acosta v. Macy's, Inc., S.D. Ohio, No. 1:17-cv-00541; (August 29, 2017).  In that case, among other things, we see a benefit plan sponsor and their TPA attempting to contain costs by applying a reference based pricing methodology to their claims.  This is great, and I applaud their efforts.  Unfortunately, however, it appears that they may not have adjusted the applicable plan document to adequately reflect this new approach.  While I’m sure this employer is thinking, “I thought the TPA does this for me?” Regardless of the truth of the matter, the employer – as a fiduciary – will be dragged into the complaint.  This will – at best – harm the relationship between the plan and TPA, but – at worst – it will cause the plan to leave the TPA and possibly self-funding altogether.

This is why I feel that TPAs, and all of us in the business of servicing self-funded employers, need to protect employers even when we’re not obligated to do so.  I fear, as in this case, that even if a self-funded employer “gets burnt” by something that is in no way, shape, or form our “fault” or “responsibility,” it’s still a black eye for the industry as a whole.

This takes me, then, to my next concern.  For some time now, (since the last major economic downturn), we’ve been hearing via mass media all about situations where employees are suing employers, and their brokers, over mismanagement of 401(K) and pension plans.  Indeed, these advisors are in many instances fiduciaries of these employee investors, and – in most of these cases – the employees are accusing their “fiduciaries” of wasting the plan’s (aka their) money on less-than-advisable investments.  Consider, for instance, the case of Lorenz v. Safeway, Inc., 241 F. Supp. 3d 1005, 1011 (N.D. Cal. 2017).  In this class action suit, the Plaintiff (Dennis M. Lorenz) asserted claims under ERISA against the “Safeway 401(K) Plan's” fiduciaries. Lorenz alleged, amongst other things, that the Defendants breached their fiduciary duty by selecting and investing the plan’s assets with funds that charged higher fees than comparable, readily-available funds, and which had no meaningful record of performance so as to indicate that higher performance would offset this difference in fees.  Why does this scare me?  I am scared because we could just as easily take this lawsuit (and the many like it) and replace the players with members of our own industry.  Health benefit plans routinely spend plan assets to pay medical bills and compensate providers that may be more costly “than comparable, readily-available [providers], and which had no meaningful record of performance so as to indicate that higher performance would offset this difference in fees.”  Ouch!  If I am a member of a self-funded health plan, and my administrator is taking my money, and using it to pay for a $3,000 colonoscopy, when a facility down the road would do it for $750… and the more expensive facility has an “as good” or “worse” record when it comes to quality and outcomes… wouldn’t I say: “Hey!  It looks like that fiduciary isn’t prudently managing my assets.”  I truly believe that, for anyone that is a fiduciary of these plans, the day participants turn on us may not be a matter of “if,” but rather, “when.”

Consider also the recently filed, McCorvey v. Nordstrom, Inc. filed in the California Central District Court on November 6, 2017.  In this case, a former participant in the Nordstrom Inc. 401(K) Plan sued plan executives alleging breaches of fiduciary duties in the management of the plan, and is seeking class action status for their claim.  The basis of the claim, similar to the Safeway case discussed above, challenges the reasonableness of fees paid with plan assets, and further, that the plan fiduciaries failed to take advantage of cost-cutting alternatives.  The lawsuit literally contends that the defendant failed to adequately and prudently manage the plan, by allowing plan funds to be used in the payment of unreasonable fees and not acting prudently to lower costs.

It doesn’t take a rocket scientist to see the parallels between these lawsuits, and out of control spending by health plans.  Whether you are someone offering better care for less cost, or someone who can revise the plan’s methodologies to maximize benefits while minimizing costs, these trends in fiduciary exposure should galvanize us all to either offer help, or seek it, when it comes to prudent use of plan assets.

“But Ron,” you say, “even if we (or the TPA and broker) are fiduciaries of the plan, the decision to contract with over-priced facilities, agree to their fees, and pay these claims, is ultimately a decision made by the plan sponsor (employer) – right?  So, while your previous comments about self-funded employers leaving the market when they realize they’ve been taken for a ride may be true, we are at least safe from liability for fiduciary breach.  Right?”  Maybe not.  Consider Longo v. Trojan Horse Ltd., 208 F. Supp. 3d 700, 712 (E.D.N.C. 2016).  In this case, the plaintiff employees of Trojan Horse and Glen Burnie Hauling filed a putative class action against defendant Ascensus Trust.  In this case, the Defendant was collecting contributions, submitting them for investment, and keeping a fee for themselves.  There is some dispute regarding what happened to the investments, but ultimately it appears the funds weren’t properly invested.  The Defendant argued that they did their job, and the issues about which the complaint was filed was outside their immediate control.  Yet, the court held that Defendant had a fiduciary duty in regard to the contributions, and that they failed to take affirmative steps to investigate.  In other words, pursuant to 29 U.S.C. § 1132(a)(2), fiduciaries are responsible to ensure the plan’s welfare is priority number one, even when the actions in question may be taken by another entity or fiduciary.  So… following that line of logic… if a TPA, broker, or other advisor is a fiduciary of the plan, and we are aware (or should reasonably be aware) of actions being taken by another fiduciary, that are detrimental to the plan … or options that available to the plan to contain costs, but we knowingly allow another fiduciary to ignore them… we may be on the hook too!

So – in summary – I believe it is proper and necessary for any and all fiduciaries of these self-funded plans to step back, look for wasteful or imprudent behavior – both by the fiduciary itself, and other fiduciaries of the plan – and determine whether there is any action, option, or alternative that would constitute a more prudent use of plan assets.  Likewise, those who seek to help these fiduciaries and the plan reduce their expenditures without harming the plan need to raise their voices and warn their prospective clients of the cost of not working with them.  In other words, fiduciaries need to stop clinging to the status quo, and the onus is on all of us to help them do so.


The Phia Group's 1st Quarter 2018 Newsletter
Phia Group Newsletter 4th Quarter


Phone: 781-535-5600 | www.phiagroup.com


The Book of Russo:
From the Desk of the CEO

About six months ago I decided to start a project at The Phia Group focusing on how we can ensure the future viability of my company. The strategy for doing this was based on focusing on the young professional, also known as the millennial population, and attempting to figure out what makes them tick. How can I attract these folks to join Phia and make them want to stay with us throughout their career? The first thing that we did was survey the many young professionals that we have here at Phia in order to identify their thoughts, and what we found out truly opened my eyes. These workers want to understand why our company exists and not just what it is that we do.

Ron Peck, Matt Painten, and I spent months just getting back to the basics. After many focus groups and back-and-forth, I believe that we figured it out. This is the core essence of Phia and how we will attract, obtain, and retain not only employees, but clientele as well. I would love your feedback on what we came up with, so here it is:

The Problem
Health care costs too much and the price is increasing; employers are forced to offset costs onto employees through higher co-pays and deductibles.

The Phia Group’s Purpose
To make health benefits affordable for employers and employees

Why is this The Phia Group’s Purpose?
Hard working Americans deserve access to high quality, affordable health care.

What does it mean to “Empower Plans?”

To help employers maximize benefits, minimize costs, and take control of their own plans.

How do we “Empower Plans?”
We start by promoting and educating employers about self-funding. Then, we invent and implement cost containment services while delivering custom solutions to meet specific client needs.

I truly hope that 2018 is an amazing year for you and yours.  Happy reading my friends.


Service Focus of the Quarter: Plan Document/Summary Plan Description Risk Assessment
Phia Group Case Study
Phia Fit to Print
From the Blogosphere
Webinars
Podcasts
The Phia Group’s 2017 Charity
The Stacks
Phia’s Speaking Events
Employee of the Quarter
Phia News


Service Focus of the Quarter: Plan Document/Summary Plan Description Risk Assessment

In case you hadn’t heard, a new tax bill has been signed into law. Amongst other things, it appears the individual mandate ushered in by the ACA (aka ObamaCare) is being eliminated. The initial impact will be on the individual market, but we foresee healthy (low risk) individuals performing a cost benefit analysis and eventually choosing to drop out of their employer’s group health insurance. The first people likely to drop from such plans are likely those who are paying an arm and a leg to be enrolled in expensive, traditional, “fully funded” insurance. Yet, we fear that – soon after – the most desirable lives (healthy, low risk lives) will drop from their employers’ self funded plans… leaving only high risk / high cost lives. No plan – fully funded or self funded – can withstand losing those lives. It therefore behooves every self funded plan sponsor to figure out ways to offer more for less, and thus make plan enrollment attractive for all members – low and high risk, healthy and unhealthy alike. To do this, you must innovate and implement new benefits and cost containment tools. To do that, start with the plan document.

One of the benefits of self-funding is that the employer has the freedom and flexibility to design a benefit plan that truly meets the needs of its employees; making it attractive to the low risk healthy lives we need to fund the plan, and to whom we need to make the plan attractive (now that they aren’t “required” to enroll). The employer also has the ability to structure the plan so as to prudently manage the assets of the plan; this can be done, in particular, through innovative plan language meant to proactively tackle potential issues such as risk and cost.

Our Plan Document/Summary Plan Description Risk Assessments will identify areas the employer may want to consider for additional review, as well as provide a brief explanation of why certain items are important.

Once completed, plan sponsors can implement new measures to make their plans very attractive to even the healthiest folks. Things like new payment methodologies of out of network claims, medical tourism, and more can result in benefit plans offering more for less – and thus remaining a “must have” for those important healthy participants – even when enrollment is optional – but it all starts with the plan document.

Contact Tim Callender at tcallender@phiagroup.com or 781-535-5631 to learn more about how a Plan Document/Summary Plan Description Risk Assessment can help you.

Protect Your ASA: Update Your Agreements Today!

The Phia Group is privileged to work with so many different players in the self-funded industry and health insurance field in general. As a result, we often see issues developing and devise solutions before they have a chance to seriously impact our allies.

One such issue that has become a bigger problem of late, negatively impacting third party administrators, plan sponsors, brokers and stop-loss carriers, occurs when a self funded benefit plan or their broker-advisor wishes to utilize a stop-loss carrier that the TPA has neither vetted nor placed. Despite the fact that the TPA played no role in selecting the carrier, that TPA - more often than not - is still targeted by the plan sponsor if and when the carrier subsequently refuses to reimburse the plan or some other conflict arises.

For those TPAs utilizing The Phia Group's best-in-class template administrative services agreement (ASA), language is included that generally addresses this issue, but as the problem has escalated - it now requires special attention. With that in mind, The Phia Group has developed a form, which is signed by the plan sponsor and TPA, and is added to existing ASAs as an exhibit.

This addendum can be revised to fit with any ASA. Please contact Garrick Hunt at ghunt@phiagroup.com or call him at (781) 535-5644 to learn how you can obtain access to this very important form.

 




 

Cutting back on Questionnaires:

It is The Phia Group’s mission to reduce the cost of healthcare through the use of innovative legal techniques and the most sophisticated technology. In keeping with this goal The Phia Group is always taking steps to improve all of our services, including our earliest: subrogation. Recent upgrades to The Phia System™ and advancements in our investigational techniques have led to faster identification of third party liability claims and quicker engagement by The Phia Group’s team, without relying upon or otherwise communicating with the plan participants. These new resources allow us to identify opportunities more often and more effectively, while at the same time reducing the volume of accident questionnaires we send to plan participants. While accident questionnaires are still a useful tool when investigating and collecting accident details – they are no longer the only tool. As such, we are pleased to now provide all of our subrogation clients with the ability to increase, decrease, or cease the use of plan participant accident questionnaires. Clients can also opt to utilize their own letters, or have the employer communicate directly with plan participants. The choice is yours!

The Phia Group is committed to ensuring you and your clients are provided with nothing but the highest quality service, best-in-class performance, and a member first approach. That is why we are continuously improving our services to provide the best performance (and most options) possible.

To discuss these new customization capabilities, or our other services, please contact Trevor Schramn at tschramn@phiagroup.com or call (781) 535-5692.

 



Phia Group Case Study: Retroactive Plan Amendments

A self-funded group’s broker approached The Phia Group’s consulting department (via PGCReferral@phiagroup.com) and asked us to help respond to a provider’s appeal of a large dialysis claim. The provider was out-of-network, so thankfully there were no PPO contract concerns – but at the time the services were rendered, the SPD defined its payment rate as the prevailing charge in the area. One month after receiving the final claims for which the Plan was responsible, the Plan chose to effect an amendment that limited payment for all dialysis claims to 145% of the Medicare rate, and the amendment was back-dated to the beginning of the year (before the member began dialysis treatments).

The Plan desired to use its new carve-out amendment to reprice the existing claims, but had received negative feedback on that proposition from its TPA, since the TPA felt that the language in the SPD at the time the claims were incurred is the language that must be adhered to. The broker asked The Phia Group for advice, and our advice was identical to that of the TPA – that a retroactive carve-out is not a valid way to price the already-incurred claims. Regardless, the Plan chose to pay all past claims based on that new amendment, despite the language not being in the SPD when the services were rendered.

As expected, the provider pushed back against the lower-than-expected reimbursement, and commenced a lawsuit over the balance of $500,000. The Phia Group provided the Plan assistance with settling the claims to avoid litigation, since litigation almost certainly would have resulted in the Plan paying the prevailing charges in the area…plus interest…plus penalties.

The moral of the story is that self-funded plans, their TPAs, and their brokers should be proactive in making sure the SPD contains the proper protections – since once a claim comes in, it is sometimes too late to contain costs. In other words, if you think you may need to carve out high dollar claims (like dialysis) in the future, fix your plan document now! Don’t wait, until it’s too late; (The Phia Group’s Phia Document Management service – including the Flagship Template – can help make sure that SPDs say what you need them to say).




Fiduciary Burden of the Quarter: Strictly Following the Plan Document!

Plan Administrators owe a fiduciary duty to strictly follow the terms of the governing plan documents. The SPD is the “supreme law of the land” for a health plan, and violating even one minor exclusion is technically a violation of the Plan Administrator’s considerable fiduciary duty. Since we’ve been warning the industry about this for years, it didn’t shock us when we heard that the Department of Labor had filed a lawsuit against a benefit plan for paying claims based on Medicare rates, without having included the proper language within the SPD.

We understand that Plan Documents are complex, and amending them is not exactly an enjoyable process. But if the health plan wants to implement procedures to save money, there are some deal-breakers – such as making sure the SPD affords the Plan the right to do what the plan is going to do.

ERISA empowers a plan sponsor to put almost any language of its choosing into its SPD. That’s a great thing, and plans that take advantage have experienced novel savings and have had remarkable self-funding experiences. If a benefit plan wants to pay claims differently from what is currently in the SPD, it can certainly do so – but not until the SPD reflects it, and not until the SPD is altered at the appropriate time.

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Phia Fit to Print:

• Self-Insurers Publishing Corp. – The Future of Self-Funding - An Insider's Take – October 3, 2017

• Money Inc. – Self-funding Amid Obamacare Uncertainty – November 2, 2017

• Self-Insurers Publishing Corp. – Interim Final Rules Update – November 4, 2017

• Self-Insurers Publishing Corp. – Managing Plan Communication During a Time of Legislative Uncertainty – December 1, 2017

• HealthLeaders Magazine – Insurers Facing Impossible Scenario: Cover Everyone, But No Individual Mandate – December 13, 2017



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From the Blogosphere:

An Appealing Option. Facing a final appeal.

Phia Undercover: Two Chargemasters at Addiction Centers. Dealing with a high rate biller.

Welcome to the Fiduciary Jungle! The writing is on the wall; what will you do about it?

Sacrificing the Individual Mandate on the Alter of Tax Reform. The glue holding all of Obamacare together.

 

To stay up to date on other industry news, please visit our blog.



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Webinars

Plan on Saving by Saving Your Plan

On January 30, 2017, The Phia Group will present “Plan on Saving by Saving Your Plan,” where our legal team will explain the Flagship template, differences from the existing template, and why the Flagship may be right for you.

Click HERE to Register!

On January 18, 2018, The Phia Group presented “A Taxing Time: The Tax Bill’s Impact on Self-Insurance,” where we discussed the latest tax law.

On December 19, 2017, The Phia Group presented “With Great (Cost-Containment) Power Comes Great (Fiduciary) Responsibility,” where we describe various ways to cut costs, what must be done to ensure that fiduciary duties are being met, and what happens if they are not.

On November 14, 2017, The Phia Group presented “Living in the Now: Prepare for 2018,” where we discussed where the market is heading and what you need to do to keep up with it.

On October 17, 2017, The Phia Group presented “Best Practices for Today's Plan Documents,” where our legal team discussed best and worst plan document practices, provide some creative ideas for plan formation, and suggest some concepts to help perfect plan document drafting.

Be sure to check out all of our past webinars!



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Podcasts:

• On December 21, 2017, The Phia Group presented “Breaking Down the GOP Tax Bill and How It Affects You,” where The Phia Group's CEO Adam Russo and Attorney Brady Bizarro discuss the new GOP tax bill in depth.

• On December 18, 2017, The Phia Group presented “Protect Your ASA,” where Adam Russo, Ron Peck, and Jen McCormick discuss the rising trend in stop-loss insurance being placed by entities other than the TPA, yet the TPA is held responsible if things go sour.

• On December 6, 2017, The Phia Group presented “Plans and Conspiracy,” where our legal team discussed the recent news regarding CVS purchasing Aetna, as well as a new opportunity to customize plan document reviews to address different levels of need.

• On November 21, 2017, The Phia Group presented “The Biggest Threats to Self-Funding: A Lightning Round,” where Adam Russo, Ron Peck, and Brady Bizarro discuss the biggest threats to the self-funded industry.

• On November 3, 2017, The Phia Group presented “Planning for Stormy Seas Ahead,” where Adam Russo, Ron Peck, and Jennifer McCormick discuss all of the many issues creating waves as it relates to benefit plan documents, and what steps we can all take to safely navigate those waters – including setting sail on The Phia Group Flagship Template!

• On October 19 2017, The Phia Group presented “Trumping Costs and Climbing the Hill,” where Adam Russo, Ron Peck, and Brady Bizarro discussed discuss the wild and crazy happenings in DC.

• On October 13, 2017, The Phia Group presented “The Man with the Plan,” where Adam Russo and Ron Peck discuss the often overlooked but – in their opinion – all important plan document.

• On September 28, 2017, The Phia Group presented “Responsibility - Beyond the Contract,” where Adam Russo and Ron Peck discuss trends impacting health plans, employers, and employees.

 

Be sure to check out all of our latest podcasts!

 



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The Phia Group’s 2017 Charity

At The Phia Group, we value our community and everyone in it. As we grow and shape our company, we hope to do the same for the people around us.

The Phia Group's 2018 charity is the Boys & Girls Club of Brockton.

The mission of The Boys & Girls Club is to nurture strong minds, healthy bodies, and community spirit through youth-driven quality programming in a safe and fun environment.

The Boys & Girls Club of Brockton (BGCB) was founded in 1990 to create a positive place for the youth of Brockton, Massachusetts. It immediately met a need in the community; in the first year alone, 500 youths, ages 8-18, signed up as club members. In the 25 years since, the club has expanded its scope exponentially by offering a mix of Boys & Girls Clubs of America (BGCA) nationally developed programs and activities unique to this club.

Since their founding, more than 20,000 Brockton youth have been welcomed through their doors. Currently, they serve more than 1,000 boys and girls ages 5-18 annually through academic year and summertime programming.

 

On Wednesday, December 21st, CEO of The Phia Group, Adam Russo, made a special visit to The Boys & Girls club of Brockton. During his visit, Adam handed out over 200 gifts that were purchased and wrapped by The Phia Group. It is truly a pleasure to see the look on their faces when Santa brings them exactly what they asked for on their wish list.

 

 

 

The Phia Group invites its staff to donate various items for the benefit of The Boys and Girls Club of Brockton. For more information or to get involved, visit www.bgcbrockton.org.



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The Stacks

Managing Plan Communication During a Time of Legislative Uncertainty

By: Corrie Cripps – December 2017 – Self-Insurers Publishing Corp.


While the congressional efforts to repeal and replace the Affordable Care Act (ACA) in 2017 have failed, the Trump administration is now taking executive and regulatory action to modify various aspects of the ACA. In addition, other guidance that may affect group health plans in 2018 is still pending. The following is a summary of the recent regulatory actions that will affect self-insured plans in 2018.

Click here to read the rest of this article


Interim Final Rules Update

By: Krista Maschinot, Esq. – November 2017 – Self-Insurers Publishing Corp.

On October 6, 2017, the Trump Administration issued two Interim Final Rules (IFR) related to the Affordable Care Act’s (ACA) contraceptive mandate. These rules apply to all employers and create additional considerations for employers sponsoring self-funded plans and their third-party administrators (TPAs).

Click here to read the rest of this article.


The Future of Self-Funding-An Insider's Take

By: Adam V. Russo, Esq. – October 2017 – Self-Insurers Publishing Corp.


According to the 2016 Milliman Medical Index, the typical family of four costs $25,826 annually in premium and out of pocket expenses and 57% of costs are borne by the employer. Self-funding the right way can reduce these figures significantly and we as an industry must focus on this. At our company, a single employee pays $127.62 for health insurance a month. This compares to the $554 average in the state of Massachusetts, based on the 2017 UBA survey.

Click here to read the rest of this article.

 

To stay up to date on other industry news, please visit our blog.

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Phia’s Q4 Speaking Events:

Phia’s Speaking Engagements:

Adam Russo’s 2018 Speaking Engagements:

• 1/23/18 – Q4 Intelligence Conference – Tampa, FL

• 2/2/2018 – Benefit Intelligence School District Conference – Phoenix, AZ

• 2/7/2018 – CGI Business Solutions Seminar – Manchester, NH

• 3/7/2018 – SIIA Self-Insured Health Plan Executive Forum – Charleston, NC

 

Ron Peck’s 2017 Speaking Engagements:

• 1/25/2018 – HealthFirst TPA Client Conference – Tyler, TX

• 3/6/2018 – SIIA National Conference – Charleston, SC

• 3/7/2018 – CGI Business Solutions Seminar – Manchester, NH

 


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Get to Know Our Employee of the Quarter:
Brady Bizarro

Congratulations to Brady Bizarro, The Phia Group’s Q4 2017 Employee of the Quarter!

Brady joined The Phia Group, LLC as an attorney in early 2016. As a member of The Phia Group's in-house legal team, he focuses on contract review, ERISA, ACA, and HIPAA compliance, claim negotiation, and providing general consultative advice on matters involving the health insurance industry and employee benefits law.

Congratulations Brady and thank you for your many current and future contributions.

 

Get to Know Our Employees of the Year: Amanda Grogan & Hemant Dua

 

 

Amanda: An attorney’s office sent the following to Amanda’s manager: “I wanted to take a moment to tell you what a professional, courteous, knowledgeable, and helpful employee Amanda Grogan is. Besides her helping me with a very difficult file she understands how her industry and her desk works, including the language we need in order to do these files and that is something that should be applauded.”

Hemant: “What more can be said about the man that came to our company and within 3 months deployed a brand new claims system that was in development for 2 years, within 6 months rewrote 75% of the logic code to ensure proper processing of our clients’ claims data in TPS, within 9 months stabilized TPS and pioneered ground breaking performance improvements that were unfathomable with EZD and most recently trained Zach, our new Principal Developer, and on-boarded our new offshore development team, Hitachi. He has been an integral part to this year’s success and his drive to resolve every issue for the TPS users is commendable. He has been a great mentor to many Phia employees that have been with the company for years, showing his business acumen to learn our processes quickly and apply them. His ability to provide solutions, teach the user how the solution was achieved and encourage the user to utilize the newly learned skills in their future endeavors makes Hemant a true sensei. Phia is lucky to have such an amazing individual working to make Phia great again!”

Congratulations Amanda & Hemant and thank you for your many current and future contributions.

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Phia News

    • Rock Stars of Health Award o The Phia Group was recently awarded the “Rock Stars of Health GOLD Award” during The Rock Stars of Health Summit held in Missoula, Montana on September 29, 2017. The award recognizes innovation in the implementation of employee health initiatives that unify expertise in wellness, employee health, safety, risk management, and employee benefits.

    • Year Up at Phia! o The Phia Group has been beyond thrilled with our talented, dedicated members who have come to us through Year Up. Sheyla and Josh have become such essential members of our team – we feel truly blessed to call them a part of the Phia Family. We sat down with them to hear their thoughts and experiences. Find out what they had to say!

    Job Opportunities:

    • Consultant I

    • Health Benefit Plan Administration – Attorney

    • IT Technologist

    • Administrative Assistant – Recovery

    • Case Analyst

    See the latest job opportunities, here: https://www.phiagroup.com/About-Us/Careers

     

    Promotions

    • Keith McMahon was promoted from Claim Recovery Specialist IV – WC to Claim Recovery Specialist IV – BI

    • Casey Balchunas was promoted from Claim Recovery Specialist III to Claim Recovery Specialist IV

    • Joseph Bacon was promoted from Legal Assistant to Claim Recovery Specialist

    • Sabrina Centeio was promoted from Case Handler to Claims Recovery Specialist III

    • Jillian Painten was promoted from Claim Recovery Specialist IV to Team Leader

    • Cori DeCristoforo was promoted from Customer Service to Case Evaluation

    • Jiyra Martinez was promoted from a part-time employee to a full-time employee

    New Hires

    • Harry Horton was hired as an Attorney

    • Rea Kostopulos was hired as a Talent Acquisition Specialist

    • Dixie Hayenga was hired as a Consultant

    • Kerry Brennan was hired as a Legal Assistant


     

    Fun at Phia:

    Our Phia Family is so festive! Our “Ugly Sweater Day” was a hit and we thank all those who participated; congratulations to Josh (pictured below sporting a little red number, complete with a reindeer puppy, plus bells and ornaments) for winning “Ugliest Sweater”!

    How great are these costumes? This year the Phia Halloween Costume Contest was truly a nail-biter. Who would win? The Cowardly Lion? The clown? The fan favorite “Orange Blob,” bravely worn by Sheyla ultimately took home the gold. Thank you to all who participated, you truly made it a stellar Halloween!

     



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info@phiagroup.com
781-535-5600

The Stacks - 1st Quarter 2018
Managing Plan Communication During a Time of Legislative Uncertainty
By: Corrie Cripps

For many employer-sponsored group health plans, this is open enrollment season.  This normally busy time of year, coupled with the general public’s uncertainty about potential health care policy changes, has produced a more stressful environment than usual.  

What’s happening at the federal level

While the congressional efforts to repeal and replace the Affordable Care Act (ACA) in 2017 have failed, the Trump administration is now taking executive and regulatory action to modify various aspects of the ACA. In addition, other guidance that may affect group health plans in 2018 is still pending. The following is a summary of the recent regulatory actions that will affect self-insured plans in 2018.

Accommodation/exemption from the ACA’s contraceptive mandate
On October 6, 2017, the Department of Labor (DOL) issued interim final rules (effective immediately) on religious and moral exemptions and accommodations to the ACA’s contraceptive mandate.1,2

These interim final rules allow a much broader group of employers and insurers to exempt themselves from covering contraceptives such as birth control pills on religious or moral grounds. While the interim final regulations do maintain the existing accommodations process, the process is now optional. In other words, employers could choose not to request an accommodation, or choose to revoke their current accommodation and instead claim exemption status. The key difference in an accommodation versus an exemption essentially impacts the third party administrator (TPA). Under the exemption, the TPA would no longer be responsible for providing the contraceptive coverage. The rules outline the process if an employer now chooses to revoke its current accommodation (which includes notifying the TPA and plan participants).

DOJ memo on gender identity/orientation
In a memorandum issued on October 4, 2017, to agency heads and US attorneys, Attorney General Jeff Sessions issued guidance to agency heads and US attorneys concluding that transgender individuals are not automatically protected from discrimination under Title VII of the Civil Rights Act of 1964.3
 
It is important to note that the Department of Justice’s (DOJ) recent guidance conflicts with the Equal Employment Opportunity Commission’s (EEOC), an independent commission, stance that transgender employees are protected under Title VII.
 
The December 31, 2016, U.S. District Court injunction (applicable nationwide) on certain parts of the ACA Section 1557—the prohibitions against discrimination on the basis of gender identity and termination of pregnancy—is still in effect.4  The DOJ’s recent guidance does not specifically address ACA Section 1557. The U.S. Department of Health and Human Services (HHS) is expected to issue a new proposed rule on ACA Section 1557, which will likely include a religious exemption.
 
Disability claims and appeals rules may be delayed until April 1, 2018
Last December the Employee Benefits Security Administration at the DOL issued a final rule on disability benefit plans claims procedures changes, which are slated to become effective on January 1, 2018.5  There is now a proposed rule to move the compliance date to April 1, 2018 for these regulations.6 

These regulations are applicable to all Employee Retirement Income Security Act (ERISA) plans that offer disability benefits. The regulations generally align procedures for disability claims with those for group health plans under the ACA.

HIPAA administrative simplification rules
On October 4, 2017, HHS withdrew the January 2, 2014 proposed rule that would have required a controlling health plan (CHP) to submit information certifying compliance with certain Health Insurance Portability and Accountability Act (HIPAA) electronic transaction operating rules and standards.7

The withdrawal of this proposed rule does not remove the requirements for covered entities to comply with any of those regulations codified at 45 CFR parts 160 and 162. The other HIPAA Administration Simplification requirement to obtain and use Health Plan Identifiers (HPIDs) has been delayed since October 2014, with no new guidance issued.8

ACA emergency room regulations
The American College of Emergency Physicians (ACEP) filed suit in May 2016 against the Departments of Health and Human Services, Labor and the Treasury (the Departments) regarding the ACA regulation for emergency services, applicable to non-grandfathered plans. Specifically, ACEP is concerned with the part of the rule that sets forth how much insurers/plans are required to pay out-of-network physicians for emergency health care services.

On August 31, 2017, a federal court ruled that the Departments acted arbitrarily and capriciously in adopting final regulations under the patient protections provisions for emergency services.9  The court stated that the Departments did not "seriously respond" to the transparency and manipulation concerns raised in comments by providers and advocacy groups to the interim final rules. The court’s ruling does not invalidate the final regulations; instead the ruling sends the regulations back to the Departments and requires them to respond to ACEP’s concerns and proposals in a substantive manner.

EEOC wellness regulation review
On August 22, 2017, the U.S. District Court for the District of Columbia concluded that the U.S. Equal Employment Opportunity Commission’s (EEOC) interpretation of a “voluntary” wellness program in its regulations is arbitrary and capricious, and has sent the regulations back to the EEOC for reconsideration.10 

In AARP v. EEOC, the AARP filed a lawsuit against the EEOC regarding its wellness program rules, which state that employers can cap incentives to participate in the wellness programs at 30% of an employee’s health insurance costs. The AARP argued that these incentives are so high that they are not truly “voluntary”, which means that older plan participants would have to incur financial penalties if they chose not to participate or divulge sensitive medical information in cases where the incentive requirement is that a health risk assessment be completed.

The court ruled in AARP's favor, determining that the EEOC did not justify its conclusion that the 30% incentive level is a reasonable interpretation of voluntariness. However, instead of vacating the regulations the court remanded them to the EEOC for reconsideration.

The EEOC has stated in its status report to the Court that it will need until August 2018 to reconsider its regulations on employer wellness programs and expects to issue a new final rule by October 2019.11  AARP is expected to respond to the EEOC’s status report and argue that revised regulations should be issued sooner.

Executive order on health care
On October 12, 2017, the President issued an executive order on health care, which directs the Departments of Health and Human Services (HHS), Labor, and Treasury (the Departments) to develop regulations and guidance that could permit new health insurance options for employers and consumers.12

The executive order seeks to allow the Departments to look for ways to make it easier for small businesses to join Association Health Plans, expand on the availability and use of Health Reimbursement Arrangements (HRAs), as well as allow the sale of insurance across state lines.

The executive order does not specify a date in which a proposed rule from the Departments will be released.

IRS will reject individual tax returns that are silent on health coverage question
The Internal Revenue Service (IRS) announced it will not accept electronically filed tax returns, and may suspend paper returns, where the individual does not answer the health coverage question.13   Employers will need to ensure they are furnishing the Form 1095-B or the Form 1095-C, whichever is applicable, to certain employees by January 31, 2018.

What are the public’s concerns
Two recent studies show that Americans rank health care policy changes as one of their biggest concerns.14,15 

The Transamerica Center for Health Studies study found that more than two-thirds (67 percent) of Americans reported having at least one chronic health condition, and 42 percent say losing health care because of a pre-existing condition is among their biggest fears.

The uncertain political environment around health care and the rising costs of health care undoubtedly cause stress, which ultimately affects the individual’s health status. In addition, many individuals are not taking advantage of the incentive programs and/or wellness programs offered by their employers, even though more employers are offering such programs.16,17  

How to communicate plan changes and spread awareness of incentives
In order to neutralize the impact of uncertainty on plan participants, plans will need to engage more authentically with plan participants. For example, if a plan is removing coverage of a benefit, the plan administrator, or representative, should articulate the reason for the change, and be responsive to the plan participants’ feedback. And if new benefits or programs are being added to the plan, those should be communicated as well. As the results from the Transamerica Center study indicate, while employers might believe that their wellness and incentive programs are clear as day to their employees, many employees aren’t even aware that these programs exist in their employer-sponsored health plans.

In addition, there are notice requirements under ERISA and the ACA that plans need to follow when making plan changes. A recent lawsuit from the DOL reiterates the importance of complying with the ERISA documentation requirements. The DOL filed suit against Macy’s and two of its TPAs alleging violations of ERISA’s fiduciary duties.18   The DOL states that at some point the plan changed the formula to calculate reimbursement of out-of-network claims, but Macy’s did not update its plan documents to notify plan participants of this change. The lawsuit states that this caused plan participants to overpay on certain claims.

This lawsuit shows the continued importance of keeping ERISA plan documentation up-to-date and ensuring that plan administration is consistent with the written terms of the plan.

Conclusion

For plans and TPAs, being well-informed on regulatory developments is always of the upmost importance, but is particularly important for this renewal and open enrollment season due to rapid changes in the regulatory landscape. In addition to keeping plan documents updated, employers and plans should also clearly communicate any changes to help ease the transition for plan participants and avoid liability landmines.

Corrie Cripps is a plan drafter/compliance consultant with The Phia Group.  She specializes in plan document drafting and review, as well as a myriad of compliance matters, notably including those related to the Affordable Care Act.  
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1Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 26 CFR Part 54, 29 CFR Part 2590, 45 CFR Part 147, October 13, 2017, https://www.gpo.gov/fdsys/pkg/FR-2017-10-13/pdf/2017-21851.pdf, (last visited November 6, 2017).
2Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 26 CFR Part 54, 29 CFR Part 2590, 45 CFR Part 147, October 13, 2017,  https://www.gpo.gov/fdsys/pkg/FR-2017-10-13/pdf/2017-21852.pdf, (last visited November 6, 2017).
3Office of the Attorney General, Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, October 4, 2017, https://www.documentcloud.org/documents/4067437-Sessions-memo-reversing-gender-identity-civil.html, (last visited November 6, 2017).
4Section 1557 of the Patient Protection and Affordable Care Act, https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html, (last visited November 6, 2017).
5Claims Procedure for Plans Providing Disability Benefits, 29 CFR Part 2560, https://www.gpo.gov/fdsys/pkg/FR-2016-12-19/pdf/2016-30070.pdf, (last visited November 6, 2017).
6Claims Procedure for Plans Providing Disability Benefits; Extension of Applicability Date, 29 CFR Part 2560, https://www.gpo.gov/fdsys/pkg/FR-2017-10-12/pdf/2017-22082.pdf, (last visited November 6, 2017).
7Administrative Simplification: Certification of Compliance for Health Plans; Withdrawal, 45 CFR Parts 160 and 162, https://www.gpo.gov/fdsys/pkg/FR-2017-10-04/pdf/2017-21424.pdf, (last visited November 6, 2017).
8HPID, https://www.cms.gov/Regulations-and-Guidance/Administrative-Simplification/Unique-Identifier/HPID.html, (last visited November 6, 2017).
9United States District Court for the District of Columbia, American College of Emergency Physicians v. Thomas E. Price, MD., https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv0913-23, (last visited November 6, 2017).
10United States District Court for the District of Columbia, AARP v. United States Equal Employment Opportunity Commission, https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv2113-47, (last visited November 6, 2017).
11AARP v. United States Equal Employment Opportunity Commission, Defendant’s Status Report, https://gallery.mailchimp.com/582bc250bf108dcead582e3b8/files/c23461a4-8a49-4bad-b6b4-36e8f9fbb615/2017_09_21.EEOC_wellness_regs_status_report.pdf, (last visited November 6, 2017).
12Presidential Executive Order Promoting Healthcare Choice and Competition Across the United States. https://www.whitehouse.gov/the-press-office/2017/10/12/presidential-executive-order-promoting-healthcare-choice-and-competition, October 12, 2017, (last visited November 6, 2017).
13ACA Information Center for Tax Professionals, https://www.irs.gov/tax-professionals/aca-information-center-for-tax-professionals, (last visited November 6, 2017).
14Transamerica Center for Health Studies, Healthcare Consumers in a Time of Uncertainty: Fifth Annual Nationwide TCHS Survey, https://www.transamericacenterforhealthstudies.org/docs/default-source/research/healthcare-consumers-in-a-time-of-uncertainty.pdf?sfvrsn=2, November 1, 2017, (last visited November 6, 2017).
15American Psychological Association, Stress in America™: The State of Our Nation, http://www.apa.org/news/press/releases/stress/2017/state-nation.pdf, November 2017, (last visited November 6, 2017).
16Transamerica Center for Health Studies, Healthcare Consumers in a Time of Uncertainty: Fifth Annual Nationwide TCHS Survey, https://www.transamericacenterforhealthstudies.org/docs/default-source/research/healthcare-consumers-in-a-time-of-uncertainty.pdf?sfvrsn=2, (last visited November 6, 2017).
17Fidelity Investments® and the National Business Group on Health®, Embracing a Broader Definition of Well-Being: Eighth Annual Employer-Sponsored Health and Well-being Survey,
https://workplace.fidelity.com/sites/default/files/NBGH%20Fidelity_2017_WellbeingWebinar_Presentation05022017.pdf, March 2017, (last visited November 6, 2017).
18Acosta v. Macy’s Inc., S.D. Ohio, No. 1:17-cv-00541
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Interim Final Rules Update
By: Krista Maschinot, Esq.

With the calendar year coming to a close, plan sponsors and plan administrators had been breathing a sigh of relief that renewal season will go smoothly as Congress failed to pass any major legislation affecting the Affordable Care Act this year.  As with years past, however, a last-minute curveball was thrown at them that proves this year will be no different than previous years.  
 
On October 6, 2017, the Trump Administration issued two Interim Final Rules (IFR) related to the Affordable Care Act’s (ACA) contraceptive mandate.  These rules apply to all employers and create additional considerations for employers sponsoring self-funded plans and their third-party administrators (TPAs).  These new Department of Health and Human Services (HHS) regulations, the “Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act” and the “Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act,” allow for an exemption to the contraceptive mandate for a broader spectrum of companies and organizations.  Specifically, the rule expands the types of entities that can claim an exemption or an accommodation from the contraceptive mandate on the grounds of religious beliefs or for moral reasons.  

Background
This is not a new discussion.  In 2012, the contraceptive mandate in the ACA required all employers to provide contraceptive coverage to participants on a no cost-sharing basis, in-network.  Religious employers, such as churches, were exempt from the mandate and were not required to file any documentation with the government.  There was also an accommodation process put into place for religious organizations that opposed covering contraceptive services for their employees and students. In 2013, a self-certification form, EBSA Form 700, was created and required for self-funded health plans claiming a religious accommodation from the mandate.  Multiple lawsuits were filed during this time resulting in a split among the circuits as to which entities could claim exemption from the mandate.  

In 2014, the Supreme Court weighed in and, in Burwell v. Hobby Lobby, held that requiring closely-held corporations to abide by the HHS regulations requiring no-cost access to contraceptives being made available to female employees violated the Religious Freedom Restoration Act (RFRA) in situations where the owners’ religious beliefs were contrary to the regulations.1   In addition to Hobby Lobby, there was another Supreme Court case, Zubik v. Burwell, regarding the accommodation process.  The Supreme Court decided not to issue a decision in the consolidated cases challenging the accommodation process for the contraceptive mandate for employers with religious objections to contraceptives.

Under the Trump Administration’s new rules, the pool of employers that will be able to opt out of the contraceptive mandate is greatly expanded as the rules allow for employers that have a sincerely-held religious or moral objection to the provision of all or a subset of contraceptives or sterilization items, procedures, or services, or related patient education and counseling, to opt out of the women’s preventive care mandate.  The expanded group of entities with religious objections includes:

•    Churches, integrated auxiliaries, and religious orders;
•    Nonprofit organizations;
•    For-profit entities;
•    Non-governmental employers;
•    Institutions of higher education;
•    Individuals with employer sponsored or individual market coverage; and
•    Issuers that provide coverage to plan sponsors or individuals that are exempt.2


As you can see from the list, this change will permit a much larger pool of companies to carve-out certain women’s preventive care benefits under their health plans.

While these interim final rules allow a much broader group of employers and insurers to exempt themselves from covering contraceptives such as birth control pills on religious or moral grounds, they do not alter the rules regarding the TPA’s/insurer’s role once the employer has opted out of providing the contraceptive coverage.  In other words, the regulations still require TPAs who administer the self-funded medical plan for those entities who opt out of the mandate to otherwise arrange for these women’s preventive benefits. While the interim final regulations do maintain the existing accommodations process, the process is now optional. Employers could choose not to request an accommodation, or choose to revoke their current accommodation, which would mean that the TPA would no longer be responsible for providing contraceptive coverage. The rules outline the process if an employer now chooses to revoke its current accommodation (which includes notifying the TPA and plan participants).

Process
Under Burwell, closely-held corporations that chose to opt out of contraceptive coverage could send a letter to HHS stating that they objected to offering contraceptive coverage in their health plans or they could complete EBSA Form 700, if they preferred.  Under the new rules, the accommodation is now an optional process and employers can choose whether or not to provide any sort of notice or self-certification in order to inform the government of their intent to no longer provide coverage under the mandate.  Employers are still responsible for notifying plan participants of any changes in coverage.

Pending Action
Upon issuance, the rules were questioned.  For example, Maura Healey, the Attorney General for the Commonwealth of Massachusetts, filed a lawsuit in federal court on Friday, October 6th, in an attempt to block the new rules from taking effect.  According to the Complaint, the IFR will result in thousands of women in Massachusetts being substantially harmed should the contraception mandate of the ACA be nullified by allowing employers to block contraceptive care and services based upon the employers’ religious and moral objections to contraception.3   The Complaint further states that implementation of the IFR will “jeopardize the health care of women in Massachusetts and nationwide, promote the religious freedom of corporations over the autonomy of women, and leave the states to bear additional health care costs both with regard to contraceptive and prenatal care as well as other services associated with unintended pregnancies and related negative health outcomes for both women and their children.”4   As of the date of this article, an Answer has not been issued by HHS.  This creates questions and confusion for how to apply to the IFR.

Next Steps
With plan renewal season just around the corner, the applicability of this rule for self-funded plans and their TPAs needs immediate clarification.  Under Burwell, the regulations required TPAs who administered the self-funded medical plan for those entities who could opt out of the mandate (via an exemption or accommodation, etc.) to otherwise arrange for these women’s preventive benefits.  According to the interim final regulations, the accommodations process is still applicable but is now optional.  TPAs will want to be on the look-out to ensure they have processes and procedures in place to address this accommodation process, or a revocation of a current accommodation, internally.

Should a plan decide to no longer offer contraceptives, the plan must still abide by the reporting and disclosure rules of the Employee Retirement Income Security Act (ERISA).   As this would be a reduction of benefits, the Summary of Material Reduction (SMR) rules would apply. A plan has to disclose a material reduction sixty (60) days after the adoption of the change.  However, this post-change notification may not necessarily align with fiduciary duties and it is best to give as much warning about a change as possible. The Summary of Benefits and Coverage (SBC) rules also include distribution requirements and, in short, if a change to the plan creates the need to change or update the SBC and the change is made mid-plan year, the plan must give sixty (60) days’ advance notice.  When changes are made at plan renewal, the SBC distribution requirement for open enrollment is generally thirty (30) days’ notice before the start of the plan year.   These requirements may create a significant amount of administrative work and potentially be costly for the plan. Plans will need to consider the administrative burdens that will arise if coverage is no longer available, the notification requirements, and how changes could possibly affect their stop loss coverage.

As a result of this regulation, there are many questions that we hope to have resolved with future guidance.  Employers considering the exemption and/or accommodation will need to take into consideration the lack of guidance provided and the potential effect these unanswered questions may have on the plan and the plan participants.  Employers and interested parties can submit their comments to HHS regarding the new rules throughout the comment period, which closes on December 5, 2017.
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1Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 22 (2014)
2Departments of Health and Human Services, Fact Sheet: Religious and Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act (2017), https://www.hhs.gov/sites/default/files/fact-sheet-religious-exemptions-and-accommodations-for-coverage.pdf.
3Commonwealth v. U.S Dep’t of Health and Human Services et al., No. 1:2017cv11930 (D. Mass. Filed Oct. 6, 2017). 
4Id.
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The Future of Self-Funding - An Insider's Take
By: Adam V. Russo, Esq.

According to the 2016 Milliman Medical Index, the typical family of four costs $25,826 annually in premium and out of pocket expenses and 57% of costs are borne by the employer. Self-funding the right way can reduce these figures significantly and we as an industry must focus on this. At our company, a single employee pays $127.62 for health insurance a month. This compares to the $554 average in the state of Massachusetts, based on the 2017 UBA survey.

Click here to read the rest of this article.

The Phia Group's 4th Quarter 2017 Newsletter
Phia Group Newsletter 2nd Quarter

Phone: 781-535-5600 | www.phiagroup.com


The Book of Russo:
From the Desk of the CEO

The fall season is here and that means cooler weather, shorter days, changing leaves… and lots of travel for those of us in the self funding space.  The airport terminal is starting to get to me, but as we all know, once October ends, we have a few months at home before the spring events.   But that doesn't mean that it's not busy; in fact, with the amount of new business that so many of you are bringing to the table, it's busier than ever here at The Phia Group. 

We are talking about new plan documents to write, new stop loss policies to assess, more data to scrub for recovery opportunities, and more claims to review.  But all of this growth comes with potential land mines. We cannot take our eyes off the ball and must continue to innovate while being cautious of not overstepping.  There are so many ways we can empower our plans but we need to ensure that we do it right.

Speaking of right, I am excited about the release of our flagship template.  I spoke to our clients and one thing you wanted was our full template plan document, but with the variables pre-selected… a best practices plan document that had our chosen provisions in place already, saving you 75% of your time filling out long checklists.  Consider it done!  That’s just one example of the news we have to share.  So, without further ado, enjoy the season and happy reading.

Reducing Questionnaires:

Thanks to evolving technology and new resources, The Phia Group can identify subrogation opportunities without sending questionnaires to plan participants.  These recent upgrades to The Phia System™ and advancements in our investigational techniques lead to faster identification of third party liability claims and quicker engagement by The Phia Group’s team, without communicating with the plan participants – identifying opportunities more often, while reducing the volume of accident questionnaires we send to plan participants.  While accident questionnaires are still a useful tool – they are no longer the only tool.  That’s why I am pleased to provide you with the ability to decrease or cease the use of accident questionnaires.  To discuss these new customization capabilities, or our other services, please contact Garrick Hunt at ghunt@phiagroup.com or call (781) 535-5644.



Service Focus of the Quarter: The Phia Group Flagship Template
New Services and Offerings
Phia Group Case Study
Phia Fit to Print
From the Blogosphere
Webinars
Podcasts
The Phia Group’s 2017 Charity
The Stacks
Phia’s Speaking Events
Employee of the Quarter
Phia News


Service Focus of the Quarter: The Phia Group Flagship Template

Our plan document can now be yours in a fraction of the time. Taking the guesswork out of best practices and utilizing optimal provisions, The Phia Group Flagship Template offers an unrivaled plan document, with time and cost effectiveness in mind.

Let us make your life easier and your plan document drafting experience more accurate. With minimal time or monetary investment, you can now take advantage of the industry's most thorough yet efficient plan document production tool. Despite having 75% fewer questions than any other customizable plan document template, The Phia Group Flagship Template is both compliant with federal law, as well as innovative in its use of cost-containment tools and participant incentivizing provisions.

It should therefore come as no surprise that following in-depth review and assessment, The Phia Group Flagship Template is supported by many leading stop loss carriers.

Contact Garrick Hunt at ghunt@phiagroup.com or 781-535-5644 to learn more about how The Phia Flagship Template can help you.


New Services and Offerings:

New Phia Tableau Reporting Portal Tool now available:

At The Phia Group, we value transparency and customer satisfaction above all else. In recognition of those priorities, we routinely improve our client facing reports and reporting capabilities. To that end, we are proud to announce that we will be further expanding our reporting service features. Through the use of Tableau (https://www.tableau.com/), reports will now offer a new level of customization, enabling you and The Phia Group to collaborate like never before. These features are not only available to our Subrogation and Third Party Claim Recovery clients, but also customers utilizing any of our Provider Relations services (such as Phia Unwrapped, Balance Bill Support, and Claim Negotiation and Signoff).

For more information regarding the new Phia Tableau Reporting Tool and pricing, please contact Garrick Hunt at ghunt@phiagroup.com or call him at (781) 535-5644


Cutting back on Questionnaires:

It is The Phia Group’s mission to reduce the cost of healthcare through the use of innovative legal techniques and the most sophisticated technology. In keeping with this goal The Phia Group is always taking steps to improve all of our services, including our earliest: subrogation. Recent upgrades to The Phia System™ and advancements in our investigational techniques have led to faster identification of third party liability claims and quicker engagement by The Phia Group’s team, without relying upon or otherwise communicating with the plan participants. These new resources allow us to identify opportunities more often and more effectively, while at the same time reducing the volume of accident questionnaires we send to plan participants. While accident questionnaires are still a useful tool when investigating and collecting accident details – they are no longer the only tool. As such, we are pleased to now provide all of our subrogation clients with the ability to increase, decrease, or cease the use of plan participant accident questionnaires. Clients can also opt to utilize their own letters, or have the employer communicate directly with plan participants.

The Phia Group is committed to ensuring you and your clients are provided with nothing but the highest quality service, best-in-class performance, and a member first approach. That is why we are continuously improving our services to provide the best performance (and most options) possible.

To discuss these new customization capabilities, or our other services, please contact Garrick Hunt at
ghunt@phiagroup.com or call (781) 535-5644.

 


Phia Group Case Study:

The Phia Group was presented with a case where a self-funded health plan paid a claim based on a network rate; the billed charges were $211,500, and the network rate was 51% of billed charges – netting payment of $107,865. When submitted to stop-loss the group’s carrier denied a portion of the claim paid, citing the stop-loss policy exclusion of all amounts in excess of Usual and Customary amounts, as determined by the carrier.

The kicker: that was all the stop-loss policy’s exclusion said - Usual and Customary was not defined anywhere within the policy.

The carrier was of the opinion that 150% of the Medicare rate was Usual and Customary, and upon that basis allowed only $22,000 – denying reimbursement of nearly $87,000 that the Plan paid pursuant to its PPO contract. The group attempted to appeal the denial, but the carrier stood firm; the group was all but ready to give up the fight, when the group changed brokers and the new broker’s first order of business was to consult The Phia Group.

The Phia Group got in touch with the stop-loss carrier on the group’s behalf and attempted to explain the group’s position. The existence of the PPO contract and required payment amount combined with the carrier’s lack of explicit, supporting policy language in the stop-loss policy (along with other arguments – legal and common sense) formed the basis of our position. After many rounds of discussions, the carrier agreed to reimburse the entire claim paid except for $2,073 in “ineligible” charges.

The plan’s liability for the denied stop-loss claim was $87,000, and The Phia Group’s intervention helped save $85,000.


Fiduciary Burden of the Quarter:

Traditionally, we have discussed fiduciary burdens in terms of companies that perform “plan” functions– such as repricing claims or administering appeals – but this quarter has seen certain instances in which those that perform “settlor” functions (most prominently a broker placing stop-loss or network coverage) have encountered some fiduciary issues. For example: a recent dispute between a plan, its broker, a network administrator, and stop-loss carrier in which the broker apparently placed inadequate or insufficient stop-loss coverage to support a network’s standard policies. The issue is that the network contract required payment of claims that the carrier did not cover; caught in the cross-fire is the broker, who placed this business, and who allegedly should have been aware of the potential discrepancy.

The allegation? That the broker simply provided bad guidance regarding the choice of which network/carrier combination the plan should use. It is a very easy mistake to make and one that can potentially be made by anyone placing business. Our advice to brokers, TPAs, and other advisors, is to make sure you are as diligent as possible when making decisions for, or even making suggestions to, your clients. Self-funded plan sponsors and plan administrators rely heavily on their advisors; when they are given questionable advice, the backlash can be huge – and it can be unexpected.

Our popular services: plan document review, stop loss policy review, and Gap-Free Analysis  (which compares the stop-loss policy to a plan document, network contract, or other materials), can help identify issues and potential “gaps” in coverage before they happen. This can mean the difference between spending $120,000 on a new Maserati, and spending $120,000 to indemnify your client from an unexpected stop-loss denial.

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Phia Fit to Print:

• Money Inc. – “Affordable” Health Insurance Is Not “Affordable” Health Care – May 11, 2017

• Boston Voyager – Meet Ron E. Peck of The Phia Group in Braintree – August 7, 2017

• Money Inc. – All Against One and One Not for All: A Case Against a Single Payer System – August 21, 2017

• Bloomberg – Employers Taking Action to Control Health-Care Costs – September 5, 2017

• California Broker Magazine – Even as “Repeal and Replace” Falters Self-funding Remains Strong September 7, 2017

• Self-Insurers Publishing Corp. – State-mandated Continuation of Coverage and ERISA Preemption: What Self-funded Employers Need to Know – August 4, 2017

• Self-Insurers Publishing Corp. – Taking Health Care International - The Growing Trends of Importing Care and Exporting Patients – July 3, 2017



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From the Blogosphere:

Stop Loss and My Infinite Sadness. You get what you pay for.

Uncertainty Prevails in the Health Care Debate. The dog days of summer have come and gone.

Reverse Medical Tourism. US patients are seeking services abroad to obtain services and care at more affordable rates.

Spinning the Web of the Plan Document. No, this isn’t about spiders.

 

To stay up to date on other industry news, please visit our blog.



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Webinars

Best Practices for Today's Plan Documents

On October 17, 2017, The Phia Group will present “Best Practices for Today's Plan Documents,” where our legal team will discuss best and worst plan document practices, provide some creative ideas for plan formation, and suggest some concepts to help perfect plan document drafting.

Click HERE to Register!

On September 21, 2017, The Phia Group presented “It’s Time To Renew – Revisiting Stop Loss Trends,” where we discussed understanding procedures preemptively, reviewing a plan document side-by-side with the stop loss policy, and agreeing upon language interpretations.

On August 22, 2017, The Phia Group presented “A True Impact on the Bottom Line – Identifying Current Issues, Implementing Solutions & Seeing Results,” where we discussed the biggest issues impacting the health benefits industry today.

On July 13, 2017, The Phia Group presented “Consulting Headlines – The Hottest Topics in Benefit Plan Administration,” where our legal team discussed how laws are changing, regulations are shifting, and benefit plans are scrambling to keep up.



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Podcasts:

On September 11, 2017, The Phia Group presented “Cutting Out Conflict,” where our legal team explained what plan administrators can do to cut out conflict and tie up loose ends before they suffer a costly loss.

On August 21, 2017, The Phia Group presented “In Reference to reference Based Pricing,” where Adam Russo and Ron Peck picked apart the method for containing costs, identified the pros and cons of an “RBP” plan, and discussed options to customize such a program.

On August 11, 2017, The Phia Group presented “Stopping the Bleeding,” where The Phia Group’s CEO, Adam Russo and Attorney Brady Bizarro interviewed Garrick Hunt, Phia’s Sales Executive.

On August 7, 2017, The Phia Group presented “Repeal & Replace Fails: What’s Next,” where The Phia Group's CEO, Adam Russo, Sr. VP, Ron Peck, and Attorney Brady Bizarro discussed the dramatic events on Capitol Hill and the shocking failure of Senate Republicans to repeal and replace Obamacare.

On July 17, 2017, The Phia Group presented “Your Friendly Neighborhood Provider,” where Ron Peck, Jon Jablon and Andrew Silverio shared stories and examples of providers working with payers to preserve the private employer based group health plan industry.

On July 10, 2017, The Phia Group presented “The Cost of Care,” where The Phia Group's CEO, Adam Russo and Sr. VP, Ron Peck, interviewed Attorney Jon Jablon - Director of Provider Relations

Be sure to check out all of our latest podcasts!

 



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The Phia Group’s 2017 Charity

At The Phia Group, we value our community and everyone in it. As we grow and shape our company, we hope to do the same for the people around us.

The Phia Group's 2017 charity is the Boys & Girls Club of Brockton.

The mission of The Boys & Girls Club is to nurture strong minds, healthy bodies, and community spirit through youth-driven quality programming in a safe and fun environment.

The Boys & Girls Club of Brockton (BGCB) was founded in 1990 to create a positive place for the youth of Brockton, Massachusetts. It immediately met a need in the community; in the first year alone, 500 youths, ages 8-18, signed up as club members. In the 25 years since, the club has expanded its scope exponentially by offering a mix of Boys & Girls Clubs of America (BGCA) nationally developed programs and activities unique to this club.

Since their founding, more than 20,000 Brockton youth have been welcomed through their doors. Currently, they serve more than 1,000 boys and girls ages 5-18 annually through academic year and summertime programming.

On Friday, August 24th, employees of The Phia Group participated in the annual volunteer day at The Boys & Girls club of Brockton. Employees of The Phia Group hosted a number of activities that all of the children truly enjoyed. This year, The Phia Group collected and donated $4,500 to help keep this program running and enjoyable for years to come!  


The Phia Group invites its staff to donate various items for the benefit of The Boys and Girls Club of Brockton. For more information or to get involved, visit www.bgcbrockton.org.



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The Stacks

Aid-in-dying Laws and the Implications for Self-Funded Plans

By: Maribel E. McLaughlin, Esq. – September 2017 - Self-Insurers Publishing Corp.


Two years ago, a woman close to my mother was diagnosed with an aggressive form of brain cancer. Along with her two daughters, she went through the various treatment options presented to her and determined that she was going to try all of them. She wanted to put her best foot forward for her daughters and her granddaughter, and she found the strength to fight the cancer with every cell in her body.

Click here to read the rest of this article


State-mandated Continuation of Coverage and ERISA Preemption: What Self-funded Employers Need to Know

By: Brady Bizarro, Esq. – August 2017 - Self-Insurers Publishing Corp.

According to one prominent health law attorney, “Although in its text ‘hospital’ appears only once and ‘physician’ not all, ERISA may be the most important law [prior to the Affordable Care Act] affecting health care in the United States.” William Sage, “Health Law 2000”: The Legal System and the Changing Health Care Market, 15(3) Health Aff. 9 (Aug. 1996). Understanding the intricacies of the Employee Retirement Income Security Act of 1973 (“ERISA”) and its preemption clause can be a challenge for even the most assiduous attorney. The statute supersedes any and all state laws insofar as they “relate to” any employee benefit plan. It also contains a “savings clause” which preserves the state’s traditional role of regulating insurance. That clause is then qualified by the “deemer clause,” which acts as a kind of escape hatch through the savings clause. For employers, that escape hatch is key because it allows them to avoid state insurance regulations by self-funding their health plans rather than by purchasing health insurance. Increasingly, however, states are testing the limits of preemption by passing leave laws which mandate that employers continue health insurance coverage for eligible employees out on leave.

Click here to read the rest of this article.


Taking Health Care International – The Growing Trends of Importing Care and Exporting Patients

By: Andrew Silverio, Esq. – July 2017 – Self-Insurers Publishing Corp.


Esteemed physicist Richard Feynman is remembered by many for the phrase “If you think you understand quantum mechanics, you don’t understand quantum mechanics.” This sentiment rings true for the continually evolving landscape of our healthcare system as well, and the problems facing all of us, particularly as insurers, employers, and patients. For those of us within the healthcare or health risk industries, the more we learn about the problems we face and what is causing them, the more we realize just how complex the landscape is and what an impossible task it would be for any single solution to reel in the cost of care.

Click here to read the rest of this article.

To stay up to date on other industry news, please visit our blog.

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Phia’s Q4 Speaking Events:

Phia’s Speaking Engagements:

• 7/12/17 – Montana Captive Conference – Whitefish, MT “High Performing Self-Insured Health Plans – The Key to Successful Stop-loss Captive Programs”

• 8/9/17 – NAHU Region 1 Meeting – Stamford, CT “The Best gets Better: Getting the Most out of Your Self-Funded Plans”

• 9/19/17 – Custom Design Benefits – Cincinnati, OH “The Top 10 Innovations in Self-Funding”

• 9/27/17 – TABA’s 2017 Fall Conference and Membership Meeting - The Woodlands, TX “Gap Traps: Avoiding Variances between the Employee Handbook and the Plan Document”

• 10/3/17 – NHAHU – Bedford, NH “Top 10 Do’s & Don’ts of Self-Funding”

• 10/4/17 – Hewitt Coleman Broker Meeting – Greenville, SC “The Future of Self-Funding & Reference Based Pricing”

• 10/16/17 – Captivated Health Membership Meeting – Woburn, MA “Empower & Engage Through Your Handbook”

Ron Peck’s 2017 Speaking Engagements:

• 9/19/17 – CIC-DC 2017 Annual Conference – Washington, D.C. “Cost Containment Strategies”

Tim Callender’s 2017 Speaking Engagements:
• 7/17/17 – Health Care Administrator’s Association TPA Summit – St. Louis, MO “Conference Emcee”

• 8/17/17 – FMMA 2017 Annual Conference – Oklahoma City, OK “Critical Strategies in Self-Funding to Promote the Free Market”

• 9/21/17 – Metro Detroit Association of Health Underwriters, Annual Conference – Troy, MI “The Real Causes of High Healthcare Costs & True Cost-Containment Strategies to Combat Cost.”

• 10/10/17 – SIIA, National Educational Conference & Expo – Phoenix, AZ “Through the Looking Glass – a Non-Vendor Take on Reference Based Pricing”

Brady Bizarro's 2017 Speaking Engagements:
• 7/18/17 – HCAA TPA Summit 2017 – St. Louis, MO “Ethics”

• 8/9/17 – TPAC 2017 Conference – Philadelphia, PA “Most Common Mistakes Employers Make in Their Plan Documents.”

• 9/26/17 – TABA’s 2017 Fall Conference and Membership Meeting - The Woodlands, TX “Gap Traps: Avoiding Variances between the Employee Handbook and the Plan Document”

 

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Get to Know Our Employee of the Quarter:
Kerri Sherman

Congratulations to Kerri Sherman, The Phia Group’s Q3 2017 Employee of the Quarter!

“Kerri consistently goes above and beyond to help all of us when help is needed. Kerri is always around to provide assistance and help out wherever she can! Whether it be training, or making sure we have all the tools we need to complete our work. She has been in the training room at times working with new people, but always keeps us informed of where she will be and what she is doing, so if any issues arise, we know how to proceed. We think she is a fantastic multi-tasker and is always supportive. She always provides quick feedback if something requires immediate attention and always provides detailed explanations of everything that needs to be done in order to solve the issue. We have appreciated all the hard work she has done to help me keep my case load at bay especially while we were preparing to go on vacation. We think she has been phenomenal and we are happy to have her on our team. She is reasonable and fair, while maintaining professionalism.”



Congratulations Kerri and thank you for your many current and future contributions.


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Phia News

    Catherine Dowie’s Latest Win

    We would like to congratulate Catherine Dowie on her latest win! Phia’s own Catherine Dowie won a $25,000 prize in the Philip Shawe Scholarship Competition, tying for second place in a pool of 240 applicants who submitted briefs to the crowd sourcing contest. We are proud to have you on our team. Get all of the details in recent article published by Suffolk University Law School.


    Job Opportunities:

    • Customer Service Representative

    • Claims Specialist

    • Medical Bill Negotiator

    • Health Benefit Plan Consultant I

    • Health Benefit Plan Administration – Attorney II

    • Product Development Manager

    See the latest job opportunities, here: https://www.phiagroup.com/About-Us/Careers

     

    Babies

    • Jamie Johnson gave birth to Miles and Kaia on 7/10/2017


    Promotions

    • Ulyana Bevilacqua was promoted from Consultant to Supervisor, PGC

    • Elizabeth Pels was promoted from Legal Assistant to Claim Recovery Specialist

    • Joseph Bacon was promoted from Legal Assistant to Claim Recovery Specialist


    • Vourneen O’Donovan was promoted from Legal Assistant to Claim Recovery Specialist

    • Cheyenne Fonseca was promoted from Legal Assistant to Claim Recovery Specialist

    New Hires

    • Joseph Bacon was hired as a Legal Assistant

    • Naveen Omkar was hired as an IT Technologist

    • Trevor Schramn was hired as a Sales and Accounts Coordinator

    • Jeff Booth was hired as a Training and Development Manager

    • Jen Montalto was hired as a Case Investigator/Stop Loss

    • Mike Mears was hired as a Claim Analyst

    • Gordon Glenn was hired as an IT Technologist

    • Olesya Avramenko was hired as a Consultant I


    • Michelle Rowland was hired as a Consultant I

    • Alexandra Simboski was hired as a Consultant I

    • Patrick Ouellette was hired as a Juris Doctor

    • Andrew Fine was hired as an Intake Specialist

    • Erin Hussey was hired as an Attorney I

    • Catina Griffiths was hired as a Case Investigator

    • Samad Khan was hired as a Contract Administrator


    • Zackery McLaren was hired as a Case Investigator

    • Kaley Dennison was hired as a Case Investigator

    • Ekta Gupta was hired as an ETL Specialist

    • Kathy baker was hired as a Claim Recovery Specialist IV-WC

    • Annie Heskin was hired as a Talent Acquisition Specialist

    Fun at Phia:

    Solar Eclipse of 2017




    Rock Star Recognition:

    The Phia Group was recently awarded the “Rock Stars of Health GOLD Award” during The Rock Stars of Health Summit held in Missoula, Montana on September 29, 2017.




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info@phiagroup.com
781-535-5600

The Stacks - 4th Quarter 2017

Aid-in-dying laws and the Implications for Self-Funded Plans
By: Maribel E. McLaughlin, Esq.

Two years ago, a woman close to my mother was diagnosed with an aggressive form of brain cancer. Along with her two daughters, she went through the various treatment options presented to her and determined that she was going to try all of them.  She wanted to put her best foot forward for her daughters and her granddaughter, and she found the strength to fight the cancer with every cell in her body.  After sixteen months of treatment, losing her hair, the inability to eat properly, and her body being riddled with the toxins that were used to fight the cancer, she decided that she wanted to end her life; her way, on her own terms.  She had a lengthy discussion with her daughters about her choice, and as sad as they were that they would soon be losing their mother, they understood that their mother wanted to live every moment to its fullest, but, when she was ready, she would make the decision to die on her own terms.  One particularly difficult night, she pushed herself to take one last walk through the Newport Cliff Walk with her daughters and granddaughter, enjoyed her last Del’s lemonade, savored the final clam chowder she was going to have, and decided that this was her chance to end her life on a high note.  That night, she took a higher dose of the medicine that she had been taking for the last sixteen months, and never woke up.  She purposely overdosed; or, as many would call it, she committed suicide.

D.C.’s New Death with Dignity Act
The Death with Dignity Act went into effect on February 18, 2017 in Washington D.C., and last month, doctors were able to begin the process of prescribing life-ending drugs to terminally ill patients; adding the District to six states that currently authorize that practice.  

The D.C. Health Department launched a website where physicians can register to participate in the “Death with Dignity” program, where doctors, pharmacists, and patients can learn about the law’s requirements and patients and doctors can download required forms.  Patients must be older than eighteen with a prognosis of less than six months to live in order to be eligible. In addition, they must have made two requests at least fifteen days apart for life-ending medications. They must ingest the drugs themselves, and two witnesses must attest that the patient is making the decision voluntarily.

Affordable Cara Act & Physician-Assisted Suicide
According to Section 1553 of the Affordable Care Act (“ACA”) , a health plan may not discriminate against an individual or institutional healthcare entity because the entity does not provide any healthcare item or service that causes, or assists in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.  Put another way, if terminally ill patient requests that his doctor help him end his life, and the doctor refuses for moral or other reasons, that doctor is protected against discrimination by federal law.  This protects the doctor that may be targeted by insurance company because of their refusal to help patients end their lives.

California’s Election of Death of Dignity Law
In California, one of the six states, the law does not make it easy for a patient to elect death with dignity; the patient must be terminally ill to request a doctor’s prescription for medications intended to end their lives peacefully.  The End of Life Option Act creates a long list of administrative obstacles that both patients and doctors must overcome. At the time of the law’s enactment, it became the fifth state to implement an aid-in-dying law, and it is currently also the most stringent.  Patients must get a prescription from a participating physician.  This is not as easy as it may seem A coordinator may connect the patient with a physician that participates; but, if the patient is a U.S. military veteran that receives healthcare from the U.S. Department of Veterans Affairs, that patient will not be able to utilize this state law since federal law prohibits the use of federal funds for this purpose.  Additionally, the forty-eight Catholic and Catholic-affiliated hospitals located in California will not provide patients with the option to end their lives.   

Cost of Death vs. Cost of Healthcare
Another obstacle that patients may come across is the cost of the drugs involved with the assisted suicide practice.  The patient’s health plan may not cover them - and the states that have allowed the practice of assisted suicide do not require health insurers to cover the medications.  Under The Employee Retirement Income Security Act of 1974 (ERISA), there are minimum standards for voluntarily established health plans in private industry to provide protection for individuals in these plans; plans must provide participants with information about plan features and funding, and furnish information regularly and free of charge.  Nothing about the Acts requires that a self-funded plan under ERISA, cover the cost of the death-with-dignity practice. Luckily under ERISA, a Plan still has the liberty to create their health benefits. A health plan, when drafting their Plan Document, can choose to either allow this practice, or not. The ACA prohibits the discrimination of a provider that does not provide assisted suicide services.  The Act does not require health plans to allow the practice. The option is left to the Plan.

Healthcare costs in the United States have risen astronomically over the past decade and many people fear that insurance companies may look to assisted suicide as a way for a health plan to save money of expensive medical care.  One report concluded that it would save approximately $627 million dollars in 1995.   Some, who oppose assisted suicide, argue that insurance companies may begin to limit expensive procedures for patients who are suffering from terminal illnesses such as cancer, AIDS, and multiple sclerosis.  Others argue that even though the aggregate savings is small, the impact on an individual company or an individual family would be a powerful enough financial incentive to encourage the practice even where it was not intended.   Many fear that patients would be more likely to consider physician-assisted suicide as a better alternative with the added bonus of saving their family money and the burden of prolonged, expensive care. Insurance companies may try to exclude life-saving or life-extending drugs and pressure people into thinking about the practice of physician assisted suicide.

Collins and the Suicide Exclusion
Health plans are permitted to include a suicide exclusion that would enable the plan administrator to deny claims associated with the suicide. In Collins v. Unum Life Insurance Co., 185 F. Supp.3d 860 (2016),  the Supreme Court held that “Unum reasonably interpreted the suicide exclusion to encompass insane suicide, [and that] Mr. Collins' sanity at death has no bearing on the outcome.”  The issue in this case involved a state law which stated that a suicide exclusion would be only be valid if liability was limited to an insured “who, whether sane or insane, dies by his own act.”  Former Navy SEAL David M. Collins served this country for seventeen years, during which he was deployed to Iraq, Afghanistan, and Kuwait. He served in dangerous and stressful situations, many of which exposed him to enemy gunfire and blasts from mortar fire.   Despite seeking treatment, Mr. Collins was found dead in the driver's seat of his car with a gunshot wound to his head on March 12, 2014. The death was ruled a suicide.  Prior to his death, Mr. Collins had been working for Blackbird Technologies, where he participated in an employee benefit plan that provided basic and supplemental life insurance through group policies funded and administered by Unum Life Insurance Company of America.  When Mr. Collins died, his widow, Jennifer Mullen Collins, applied for benefits under both policies. Unum granted benefits under the basic policy, but denied benefits under the supplemental policy's suicide exclusion.  In addition, the Court held that it found “substantial evidence in the administrative record to support Unum's conclusion that the suicide exclusion applied.”

Option to Elect or Exclude Suicide
Plan administrators can take the position of either excluding assisted-suicide claims or paying them.  They can allow the practice, and give the power to the patient to make the decision for themselves, and ultimately save the Plan money for care that the patient would have ultimately not wanted; or, they can exclude the practice and have the peace of mind that everything that should have been covered was covered.  Whether you’re a broker, a health plan sponsor, third-party administrator, or reinsurer, this is something that should not only spike an interest, but also it should worry you if you have health plans in the states that allow physician assisted suicide practices.  Specialists in plan document drafting can provide assistance in reviewing your plan document and ensuring that the plan document addresses this issue specifically.
_________________________________________
1 HHS Office of the Secretary & Office for Civil Rights (OCR), Section 1553 - Refusal to provide assisted suicide services HHS.gov (2015), https://www.hhs.gov/civil-rights/for-individuals/refusal-provide-assisted-suicide-services/index.html (last visited Aug 9, 2017).
2 42 U.S. Code § 18113 (2010)
3 AB-15 End of life.(2015-2016), Bill Text - ABX2-15 End of life. (2015), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520162AB15 (last visited Aug 9, 2017).
4 Id.
5 Emily Bazar, Aid-In-Dying: Not So Easy Kaiser Health News (2017), http://khn.org/news/aid-in-dying-not-so-easy/ (last visited Aug 9, 2017).
6 29 U.S.C. 18 § 1001
7 Physician Assisted Suicide and Health Care Costs, Low Fat Diet Plan, http://lowfatdietplan.com/weight-loss-routine/end-of-life-care/physician-assisted-suicide-and-health-care-costs (last visited Aug 9, 2017).
8 Id
9 Id.
10 Collins v. Unum Life Insurance Co., 185 F. Supp.3d 860 (2016)
11 Id. at 882
12 Id. at 871
13 Id. at 863
14 Id. at 864
15 Id. at 863
16 Id. at 865
17 Id. at 880
________________________________________________________________________________________________________________________
State-mandated Continuation of Coverage and ERISA Preemption: What Self-funded Employers Need to Know
By: Brady Bizarro, Esq.

According to one prominent health law attorney, “Although in its text ‘hospital’ appears only once and ‘physician’ not all, ERISA may be the most important law [prior to the Affordable Care Act] affecting health care in the United States.” William Sage, “Health Law 2000”: The Legal System and the Changing Health Care Market, 15(3) Health Aff. 9 (Aug. 1996). Understanding the intricacies of the Employee Retirement Income Security Act of 1973 (“ERISA”) and its preemption clause can be a challenge for even the most assiduous attorney. The statute supersedes any and all state laws insofar as they “relate to” any employee benefit plan. It also contains a “savings clause” which preserves the state’s traditional role of regulating insurance. That clause is then qualified by the “deemer clause,” which acts as a kind of escape hatch through the savings clause. For employers, that escape hatch is key because it allows them to avoid state insurance regulations by self-funding their health plans rather than by purchasing health insurance. Increasingly, however, states are testing the limits of preemption by passing leave laws which mandate that employers continue health insurance coverage for eligible employees out on leave.

Perhaps the best known leave law is the federal Family and Medical Leave Act of 1993 (“FMLA”). The statute, like most other federal laws, applies regardless of the source of insurance. It requires employers to provide twelve weeks of unpaid, job-protected leave for an employee’s own serious health condition, for the birth or adoption of a child, or to care for a spouse, parent, or child with an illness. Significantly, the law also requires employers to maintain group health benefits for employees who take FMLA leave. Even though this continuation of coverage requirement clearly impacts self-funded ERISA plans, federal laws such as the FMLA are outside the scope of ERISA preemption.

At the state level, five states have now passed laws to address a perceived gap in the FMLA, granting eligible employees paid family leave: California, New Jersey, Rhode Island, Washington, and New York. Rhode Island law requires four weeks of paid leave, California and New Jersey each offer six weeks of paid leave, and Washington offers up to twelve weeks per year. New York’s Paid Family Leave Act (“PFL”), scheduled to take effect on January 1, 2018, offers one of the longest and most comprehensive paid family leave laws in the country. What makes the PFL unique is not just that it requires employers to provide twelve weeks of paid family leave; it also requires employers to continue health insurance coverage to employees out on leave. While this state-mandated employer obligation would seem to fall squarely under the purview of ERISA preemption, it turns out that determining the scope of ERISA preemption is an arduous task.

The key question to answer is whether the state law at issue “relates to” an ERISA plan.  The U.S. Supreme Court has said that a state law “relates to” an employee benefit plan covered by ERISA if it refers to or has a connection with that plan, even if the law is not designed to affect the plan or the effect is only indirect. See, e.g., Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990). This implies that there is no relevant distinction between obligations imposed on the employer versus on the employee benefit plan for purposes of determining whether ERISA preemption applies. Simply put, state laws which impose obligations on employers, and not specifically plans, may still be preempted. In addition, the Court has held that ERISA does not preempt state laws which have only a tenuous, remote, or peripheral connection with an ERISA plan, as is typically the case with laws of general applicability.

The Court directly addressed ERISA preemption and a state law which mandated the extension of health insurance coverage in District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125 (1992). In Greater Washington, the Court reviewed a Washington, D.C. law which required employers who provided health insurance for their employees to provide equivalent health insurance coverage for employees eligible for workers’ compensation benefits. The Court explained that when a state law specifically refers to benefit plans regulated by ERISA, that provides a sufficient basis for preemption. It made no difference to the Court that the law also related to ERISA-exempt worker-compensation plans or non-ERISA plans. Once it is determined that a state law relates to ERISA plans, this is sufficient irrespective of whether the law also relates to ERISA-exempt plans.
 
In earlier cases, petitioners argued that ERISA preemption should be construed to require a two-step analysis: if the state law “related to” an ERISA-covered plan, they argued, it may still survive preemption if employers could comply with the law through separately administered plans exempt from ERISA (making the distinction between a plan requirement and an employer requirement). See generally Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). In Greater Washington, the U.S. Supreme Court dismissed that analysis, stating, “We cannot engraft a two-step analysis onto a one-step statute.” See Greater Washington, at 133. Despite the Court’s rulings, the breadth of the “relate to” clause remained unclear and the question of state-mandated continuation of coverage was not directly addressed.

In 2005, the Department of Labor (“DOL”) seemed to put this issue to rest in an advisory opinion on the applicability of leave substitution provisions of the Washington State Family Care Act (“FCA”) to employee benefit plans. The FCA permits employees entitled to sick leave or other paid time off to use that paid time off to care for certain relatives of the employee who had health conditions or medical emergencies. As part of its analysis, the DOL analyzed section 401(b) of the FMLA, which provides that state family leave laws at least as generous as the FMLA are not preempted by “this Act or any amendment made by this Act.” 29 U.S.C. § 2651(b). Further, the DOL cited to a 1993 Senate report which recounts a colloquy between Senators Chris Dodd (D-CT) and Russ Feingold (D-WI). The discussion involved the leave substitution provisions of the Wisconsin FMLA and ERISA preemption. The record revealed that Senator Dodd, the chief sponsor of the FMLA, remarked, “The authors of this legislation intend to prevent ERISA and any other [f]ederal law from undercutting the family and medical leave laws of States that currently allow the provision of substitution of accrued paid leave for unpaid family leave…” The DOL relied on this exchange as additional support for the notion that state family leave laws at least as generous as the FMLA (including leave laws that provide continuation of health insurance or other benefits) are not preempted by ERISA or any other federal law.

As a result of the department’s guidance, it appeared as if state family leave laws enjoyed special protections from ERISA preemption. In 2014, the Sixth Circuit Court of Appeals considered the same issue and reached the opposite conclusion. In Sherfel v. Newson, 768 F.3d 561 (2014), the Court found that the leave substitution provisions of Wisconsin’s FMLA sufficiently “related to” an ERISA plan such that they were preempted by ERISA. Specifically, the Court held that the state law would “mandate the payment of benefits contrary to the [written] terms of an ERISA plan,” thus undermining one of ERISA’s chief purposes; achieving a uniform administrative scheme for employers. Newson, at 564. As part of its analysis of the preemption issue, the Court also dismissed the legislative history relied upon by the DOL in an uncommonly blunt (and borderline satirical) manner. Considering whether legislators intended to preclude the preemption of state family leave laws by ERISA, the Court observed, “[T]he idea that this colloquy ever passed the lips of any Senator is an obvious fiction. Colloquies of this sort get inserted into the Congressional Record all the time, usually at the request of a lobbyist…” Newson, at 570.

By ruling that a state family leave law was preempted by ERISA, the Sixth Circuit Court of Appeals aligned itself with the U.S. Supreme Court’s earlier jurisprudence on preemption. It remains to be seen how other Circuit Courts will address similar challenges to state leave laws; especially those that mandate continuation of coverage. The conservative approach for employers would be to continue health coverage when required by state law; however, the Sixth Circuit is the highest court to address this issue to date, and self-funded employers would be on solid footing to use ERISA preemption as a shield against state-mandated continuation of coverage.

Paid family leave is one of the few policies in Washington, D.C. that has bipartisan support, and employers should expect to see more states pass laws akin to New York’s Paid Family Leave Act. The President explicitly referred to paid family leave in a speech to a joint session of Congress on February 28, and his 2018 budget proposes six weeks of federal paid parental leave. While it remains unclear if that policy will become law, the trend is likely to continue at the state level, and as those laws impact self-funded health plans, the issue of continuation of coverage and ERISA preemption will increasingly attract the scrutiny of the courts.

Brady Bizarro, Esq. is an attorney with The Phia Group, LLC.
________________________________________________________________________________________________________________________
Taking Health Care International – The Growing Trends of Importing Care and Exporting Patients
By: Andrew Silverio, Esq.

Esteemed physicist Richard Feynman is remembered by many for the phrase “If you think you understand quantum mechanics, you don’t understand quantum mechanics.”  This sentiment rings true for the continually evolving landscape of our healthcare system as well, and the problems facing all of us, particularly as insurers, employers, and patients.  For those of us within the healthcare or health risk industries, the more we learn about the problems we face and what is causing them, the more we realize just how complex the landscape is and what an impossible task it would be for any single solution to reel in the cost of care.

In tow with the cost of care, health premiums as well as per capita healthcare spending in America steadily increase every year.  This should not be news to anyone, and countless strategies have been proposed to slow and eventually reverse this inflation.  But, for many, the immediate objective isn’t to “fix” healthcare or undo the decades of developments which brought us here.  For many, the immediate goal is just to get care for their employees and families in an affordable way.  Although this problem is not uniquely American, we spend more of our GDP on healthcare than any other country (by a wide margin), and care is more expensive here than anywhere else.  As such, several newer strategies for cost containment are reaching beyond our borders into the international market – and doing so with impressive results.

One strategy aims to avoid the exceedingly high prices of some prescription medications in America by simply getting them from elsewhere.  Countries designated as “Tier 1” countries (including Canada, the UK, Australia, and New Zealand) have safety and efficacy standards which equal or exceed American standards, and enjoy significantly lower prices for drugs which are often chemically identical.  So, why hasn’t the American prescription drug market self-corrected due to this international competition?  The simple answer, and the reason many employers are hesitant to take advantage of this option, is that the practice is illegal.  Under federal law, drugs which are manufactured for sale outside the country are not FDA approved, as there is no potential for oversight in the manufacturing process.  Additionally, even if the foreign version of the drug is chemically identical in every respect, FDA guidelines address more than just the chemical makeup of the drug – they relate to labeling, storage, and transportation as well.  So, even a drug manufactured within the United States for sale outside of the country would be considered illegal if it was later re-imported into the country.

So, if importing foreign drugs is illegal, how is it a viable option for cost containment?  It’s possible, under the right circumstances, due to a well documented FDA policy of “enforcement discretion”.  Under this policy, the FDA does not prosecute individuals who import a limited quantity of prescription medications from abroad for personal use.  This discretion is based on several factors, including that the drug is for personal use only and that the amount imported is no more than a 3 month supply. So, if a program is set up correctly, the savings on many costly medications can be huge, with very minimal risk to the employer.  Two important things to consider, though, are safety and plan document design.  Regarding safety, it’s important to remember that just because a drug comes from a “Tier 1” country does not mean it is safe.  Just as you (probably) wouldn’t buy prescription drugs from someone out of a suitcase on the street, it’s important to ensure that you are working with reputable people and pharmacies abroad when dealing with this type of program.  There have been incidents involving drugs which were imported from Tier 1 countries after being manufactured in other countries with more lax standards, as well as incidents were drugs were found to be outright counterfeits.  Regarding plan document design, any given plan document likely has some existing barriers to making a seamless transition into reimbursing for expenses such as these.  Any exclusions or language which would conflict must be removed, and these changes should be approved by the plan’s stop-loss carrier and TPA (and ideally the PBM as well).  But again, when set up and run properly, this type of program can generate significant savings with minimal risk to the employer or patient.

Another trend picking up steam is specialized medical tourism.  Medical tourism is certainly nothing new, both within the country and internationally, but we are seeing a new trend – providers gearing their business model to specifically target medical tourism, and sometimes even specific conditions/illnesses.  When a facility specializing in a certain surgical procedure or implant, or treating a disease with particularly costly treatment, sets up shop just over the boarder or just offshore, it’s surely no coincidence.

A prime example of this is Health City Cayman Islands. Health City is a brand new facility (they took their first patient in 2014) that offers a broad spectrum of healthcare services, but none illustrate the savings potential better than their hepatitis C program.  Of course, a medical tourism offering only helps an employer save money if patients want to utilize it.  Health City seems to understand this – along with the appeal of their tropical location they offer travel planning assistance, transportation, and concierge services including arranging local activities and excursions.  The leading prescription hepatitis C medications can cost nearly $100,000 in the United States for a single 12 week course of treatment.  Many employers may be surprised to hear that in light of this, as compared to simply purchasing the drug at the local pharmacy, it can actually be significantly less expensive to put a patient on a plane (with a companion) and fly them to the Caribbean for treatment, including all ancillary services and testing and prescription medications dispensed onsite, all as part of what is essentially a free vacation.  The same concept is being applied with increasing regularity to other treatment, including surgical procedures.

Just as with drug importation, there are some practical house cleaning tasks a plan must take care of before introducing any sort of medical tourism benefit, particularly if patients will be traveling internationally.  A common barrier could be any existing plan exclusions for international treatment.  This and any other conflicting exclusions must be removed and cleared with interested parties, just as with an importation reimbursement benefit.  Another consideration with a medical tourism benefit is potential conflicts with the employer’s network agreement.  Many such agreements require that the in-network incentive be the “best” available, so if the in-network coinsurance is 20%, and the plan offers a “zero out-of-pocket” option to incentivize patients to use the new program, there could be trouble.  By that same token, the limitation could only apply within the network’s service area, which would mean there is no problem.  It is important to have a professional review these agreements to make sure the employer isn’t creating any liability for itself.

While many great minds continue to grapple with the puzzle of bringing American health costs down, many patients and employers simply cannot afford to wait for a complete solution.  These globally-minded strategies are just a few of the creative ways employer plans, vendors, and providers are attempting to make care more affordable and accessible.  The potential for savings is huge, and the quality of care can be just as high as or higher than comparable treatment domestically. Ultimately, those who reap the benefits will be those who are willing to innovate, and utilize new methods and strategies outside of the traditional employee benefit playbook.


The Phia Group's 3rd Quarter 2017 Newsletter
Phia Group Newsletter 2nd Quarter

Phone: 781-535-5600 | www.phiagroup.com





The Book of Russo: From the Desk of the CEO

The heat is on here in Boston with absolutely beautiful weather over the past few weeks with the same expected in the near future. This can also be said for the self-insured industry as a whole as well as what we have seen here at The Phia Group. The summer has not meant a slow down; in fact business is up across the board and interest from brokers, advisors, and employers is at levels I have never seen. So while it’s great news that so many people want to get in on this innovative market, the risk is that employers and others will jump in too quickly without truly understanding the risks involved with self-funding their employee benefit plans. Sure you can lower your costs by self-funding but you also expose yourself to catastrophic claims issues, high priced drug costs that you cannot control and stop loss issues that you had no idea existed. That’s why we are here for the industry – to ensure you can have your cake and eat it too. I hope you enjoy our summer newsletter as we have lots of great info to share. Happy reading!

Service Focus of the Quarter: Independent Consultation & Evaluation (ICE)
New Services and Offerings
Phia Group Case Study: Flagship Plan Document
Phia Fit to Print
From the Blogosphere
Webinars
Podcasts
The Phia Group’s 2017 Charity
The Stacks
Phia’s Speaking Events
Employee of the Quarter
Phia News


Service Focus of the Quarter: Independent Consultation & Evaluation (ICE)

You need legal consultation to address regulatory compliance concerns, claim processing queries, and to collaborate on difficult administrative tasks. Having an experienced team of attorneys, compliance specialists, and industry experts on call is a must have. With The Phia Group's Independent Consultation and Evaluation ("ICE") service, unlimited access to The Phia Group's acclaimed team of legal consultants is yours for an affordable pre-paid, per employee per month (“PEPM”) subscription fee. Gone are the days of budgeting on the fly and dealing with mysterious "legal bills." With an ICE subscription fee, clients can preemptively budget for and share the cost of this invaluable resource - allowing The Phia Group and their clients to focus on what is really important - results.

For more information regarding ICE and The Phia Group's many other services, please visit our website or contact The Phia Group's Vice President of Sales & Marketing, Tim Callender by email at tcallender@phiagroup.com or by phone at 781-535-5631.

New Services and Offerings:

Leave of Absence Review

Employers aren't paying attention to their health benefit plan documents. They alter their employee handbooks every year, or sometimes multiple times in a single year. They try to be generous, providing employees with the ability to take leaves of absence, and promising them extended health plan coverage when they take such leaves of absence. Little do they know that their plan documents expel participants from coverage after a fixed period of time if the employee isn't actively working. This means that - per the plan - that person exercising their right to a leave of absence has no health plan coverage. If the employer tries to provide coverage anyway, stop-loss isn't required to reimburse claims over the deductible.

We're seeing this conflict come up with startling frequency, and the time has come to end this problem once and for all. The Phia Group has added a Leave of Absence review to its already popular Gap-Free Analysis service. The Phia Group's team of plan document experts and attorneys will analyze the applicable plan document side-by-side with the employer's handbook and stop-loss policy, to ensure there are no gaps in coverage and that all are in compliance with applicable law.

Flagship Plan Document

Every self-funded plan deserves a "Best in Class" plan document, yet - delays in plan drafting cause many plans to administer old plans - or in some cases - no plan. Now there is no excuse for administering a self-funded program with an outdated plan document, or worse, no plan document at all.

The Phia Group has compiled decades of experience servicing various types of plans, and drafting various types of plan documents, to develop its Flagship Template. This plan document "checks all the boxes" when it comes to best practices, regarding everything from cost containment to compliance; offering robust yet effective coverage.

The Phia Group's Flagship Template is a condensed version of its industry acclaimed, fully customizable template. The Phia Group has taken its own plan document (complete with thousands of requisite customization queries), and created a nearly complete plan document - by pre-selecting what it deems to be the best provisions in every regard; applying best practices to create an almost-complete plan. All that remains is for the plan sponsor or its named administrator to fill in their biographical information, insert their selected schedule of benefits, eligibility criteria, and review the language already provided to request edits or revisions.

Our goal is to provide plans with plan documents that we think reflect best practices. The plan sponsor and its administrator no longer need to review countless options or fill in limitless blank spaces. The hard work has already been handled by The Phia Group. We don't want to see any more self-funded employers or plan administrators suffer penalties or face conflicts with their partners, due to an outdated or non-existent plan document. Now, with The Phia Group's Flagship Template, clients can enjoy speedy production of best-in-class plans, with minimal time or monetary investment.

For more information regarding any of The Phia Group’s services, please contact The Phia Group’s Vice President of Sales & Marketing, Tim Callender, by email at tcallender@phiagroup.com or by phone at 781-535-5631.

Phia Group Case Study: Flagship Plan Document

Not long after The Phia Group introduced its Flagship Template offering as part of its Phia Document Management (PDM) service, one of our long-time clients approached us with an issue they were having. They had a new client prospect – the largest prospect the TPA had ever had, and indeed far larger than the average self-funded group. This particular group was coming from the fully-insured market, so it had never structured its own Plan Document before. As part of the RFP process, the TPA had provided the Plan Sponsor with a checklist from the TPA’s standard template, customized for use with the Phia Document Management software.

The TPA contacted our consulting and plan drafting team and relayed that this formerly-fully insured group was a bit uneasy about the number of variables in the checklist. Although the Plan Sponsor had not yet awarded the TPA its business, the Plan Sponsor indicated that it had absolutely no idea how to choose, for instance, which “illegal acts” or “workers compensation” exclusions it wanted, of the myriad of options within the standard checklist.

The Phia Group’s plan drafting team informed the TPA of the newfound existence of our Flagship Template, which is designed specifically to cut down variables by 75%, instead applying our best-practices approach to definitions and exclusions. The remaining variables are designed to be high-level options, rather than the nitty gritty that plan sponsors may not have the experience or interest to answer.

The TPA showed the Plan Sponsor the Flagship Template checklist, and the Plan Sponsor was pleased with the more manageable number of variables, and subsequently awarded the TPA its considerable block of business.


Fiduciary Burden of the Quarter: Prudent Management of Plan Assets

ERISA specifies that all Plan Administrators must be prudent with assets. That means avoiding waste, and securing savings whenever possible. Protecting plan assets, identifying fraud, overpayments, undue costs, as well as taking action to protect the plan, recoup lost funds, and identify savings opportunities, are being treated less like “good ideas” and more like “fiduciary duties.” In the meantime, the Department of Labor has begun to crack down on fiduciary violations more than ever.

As always, we urge TPAs and brokers to do their best to ensure that they, and their clients, are prudent with plan assets in every way possible! Please visit our website or contact The Phia Group's Vice President of Sales & Marketing, Tim Callender by email at tcallender@phiagroup.com or by phone at 781-535-5631 to discuss this growing concern and steps you can take to maximize benefits and minimize costs.

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Phia Fit to Print:

• Employers Costs Outpace Salaries – America's Benefit Specialist, Page 28

Money Inc. – “Affordable” Health Insurance Is Not “Affordable” Health Care

• Self-Insurers Publishing Corp. – Taking Health Care International - The Growing Trends of Importing Care and Exporting Patients

• Self-Insurers Publishing Corp. – Held Captive by Appeals

• Self-Insurers Publishing Corp. – Appealing to Reason

• Self-Insurers Publishing Corp. – Self-Funded Health Plan May Have a New Ally in the Fight against Specialty Drug Prices


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From the Blogosphere:

The Rules of the Game are Still Changing. What is an Executive Order?

Dear Stop-Loss: A Ballad. A blog that can be sung to the tune of “Gilligan’s Island.”

You Are Not Going to Sue us, Are You? Claims from providers are “getting high.”

Transparency – It’s Not Just for Ghosts. What about the costs of standard medical procedures?


To stay up to date on other industry news, please visit our blog.


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Webinars

Consulting Headlines – The Hottest Topics in Benefit Plan Administration

On July 13, 2017, The Phia Group will present “Consulting Headlines – The Hottest Topics in Benefit Plan Administration,” where our legal team will discuss how laws are changing, regulations are shifting, and benefit plans are scrambling to keep up.

Click HERE to Register!

On June 22, 2017, The Phia Group presented “A Network by any Other Name,” where we discussed various payment methodologies, and what a health plan needs to do to ensure that the Plan Document supports that methodology.

On May 16, 2017, The Phia Group presented “Decisions, Decisions: Which Plan Types Work Best for Which Groups, and Why,” where we went over some basic types of plans that can be chosen and some benefits and pitfalls of each.

On April 27, 2017, The Phia Group presented “The Double-Edged Sword of Discretion: How Even Great Plan Document Language Can Cause Gaps in Coverage,” where our legal team discussed discretion within Plan Documents and stop-loss policies, and how the two interact.


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Podcasts:

On June 22, 2017, The Phia Group presented “The Senate Unveils its Repeal & Replace Bill,” where Sr. Vice President and General Counsel Ron Peck and Attorney Brady Bizarro give their initial thoughts on the Better Care Reconciliation Act.

On June 19, 2017, The Phia Group presented “Plan Tales: The Good, Bad, and Really Bad,” where Adam Russo and Ron Peck interview two key members of The Phia Group’s consulting division – Vice President of Consulting, Attorney Jennifer McCormick, and Product Developer, Kristin Spath.

On June 5, 2017, The Phia Group presented “In the Land of the Blind,” where we discussed the assessment of the American Health Care Act (Version 2.0).

On May 22, 2017, The Phia Group presented “Healthcares? Alternative Provider Payment Programs,” where Adam Russo and Ron Peck discussed movements within the healthcare provider community.

On May 8, 2017, The Phia Group presented “The American Health Care Act,” where Adam Russo, Ron Peck, and Brady Bizarro discussed the American Health Care Act, which passed the House of Representatives on 05/04/2017.

On April 25, 2017, The Phia Group presented “An Employer Call to Action,” where our legal team discussed what employers can do to improve their health plan and plan performance.

 


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The Phia Group’s 2017 Charity

The Phia Group's 2017 charity is the Boys & Girls Club of Brockton.

The mission of The Boys & Girls Club is to nurture strong minds, healthy bodies, and community spirit through youth-driven quality programming in a safe and fun environment.

The Boys & Girls Club of Brockton (BGCB) was founded in 1990 to create a positive place for the youth of Brockton, Massachusetts. It immediately met a need in the community; in the first year alone, 500 youths, ages 8-18, signed up as club members. In the 25 years since, the club has expanded its scope exponentially by offering a mix of Boys & Girls Clubs of America (BGCA) nationally developed programs and activities unique to this club.

Since their founding, more than 20,000 Brockton youth have been welcomed through their doors. Currently, they serve more than 1,000 boys and girls ages 5-18 annually through academic year and summertime programming.

Phia's Wiffle Ball Game


On Saturday, June 24th, employees of the Phia Group participated in the 6th Annual John A. Waldron Wiffle Ball Tournament. The tournament honors the late John Waldron, a former member of the Brockton’s Planning Board and Democratic City Committee and a longtime booster for Brockton High School’s sports and clubs. Phia and the 36 teams competing helped raise over $16,000 for local charities, including the Boys and Girls Club of Brockton, TOPSoccer, Frederick Douglass Neighborhood Association, Brockton Hospital Cancer Walk, and more. For more information, visit the John Waldron Wiffleball Tournament website. 

 

Monthly Donations From Phia


 

The Phia Group invites its staff to donate various items for the benefit of The Boys and Girls Club of Brockton. For more information or to get involved, visit www.bgcbrockton.org.


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The Stacks

A Year Later . . . Montanile Remembered, Lessons Learned

By: Christopher M. Aguiar, Esq. – April 2017 – Self-Insurers Publishing Corp.


Things were going so well. In the game of subrogation cases being heard by the Supreme Court of the United States, self-funded benefit plans under the purview of ERISA were on a roll. First, it was Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), then U.S. Airways v. McCutchen, 133 S. Ct. 1537 (2013). Some even considered Great West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) to have been unfairly viewed as a loss for the subrogation industry because despite a decision against Great West Life, it provided the blue print followed by Mid Atlantic Medical Services, Inc. to elicit the favorable decision that led to the recovery in Sereboff. As is the case in most games, momentum can be lost in the blink an eye.

Click here to read the rest of this article


Don’t Let Your LOAs Leave You DOA

By: Kelly E. Dempsey, Esq. – May 2017 Self-Insurers Publishing Corp.

Imagine a scenario where an employer has a long-time reliable employee that suddenly has a stroke of bad luck and is diagnosed with stage four cancer after being relatively asymptomatic and having never been diagnosed with cancer previously. The employee works with a team of medical professionals to come up with a game plan for beating this terrible disease. The employee quickly begins what will hopefully be life-saving treatment as soon as a game plan is mapped out. The claims start rolling in and the treatment starts taking its toll. The employee starts missing an hour here and there for appointments – and then a few hours for appointments and sickness –and then full days of work during treatment. When the employee is at work, the employee struggles to perform normal job functions and the employee is now unable to work because the rigorous chemotherapy regiment.

Click here to read the rest of this article.

 

Air Ambulance: Heads in the Clouds

By: Jon A. Jablon, Esq. – June 2017 – Self-Insurers Publishing Corp.


Health plans, third-party administrators, brokers, consultants, and stop-loss carriers are a bit baffled by air ambulance fees. Many are outraged or appalled or disgusted as well – but it seems that the overwhelmingly common feeling is sheer confusion over how this type of billing is permissible.

Click here to read the rest of this article.


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Phia’s Q2 Speaking Events:

Adam Russo’s 2017 Speaking Engagements:

• 4/24/17 - Berkley Captive Symposium – Grand Cayman Islands
“The Best Gets Better – Getting the Most Out of Your Self-Funded Plan”

• 5/4/17 – Benefest – Westborough, MA
“Multiple Personalities – The Biggest Issues Impacting Plans & Employers, and Instances Where They are Their Own Worst Enemy”

• 5/22/17 – United Benefit Advisors (UBA) Spring Conference – Chicago, IL
“The Best Gets Better – Getting the Most Out of Your Self-Funded Plan”

• 6/27/17 – Leavitt Trustee Conference – Big Sky, MT
“The Best Gets Better – Getting the Most Out of Your Self-Funded Plan”

Ron Peck’s 2017 Speaking Engagements:

• 4/3/17 – Eastern Claims Conference (ECC) – Boston, MA
“The Good, The Bad, and The Ugly: Understanding Reference Based Pricing in the Special Risk Market”

Tim Callender’s 2017 Speaking Engagements:
• 5/4/17 – BevCap Best Practice Workshop – Orlando, FL
“PACE & ICE with a brief political update on repeal and replace”

• 5/22/17 – Group Underwriters Association of America Annual Conference – Denver, CO
“The Future of Health Plans”

Jen McCormick's Speaking Engagements:
• 5/20/17 – United Benefit Advisors (UBA) Spring Conference – Chicago, IL
“Self-funding and Compliance Issues”

Brady Bizarro's 2017 Speaking Engagements:
• 5/4/17 – BevCap Best Practice Workshop 2017 – Orlando, FL
“Phia's PACE and ICE Services”

Phia’s Upcoming Speaking Events

Adam Russo’s Upcoming Speaking Engagements in 2017:

• 7/12/17 – Montana Captive Conference – Whitefish, MT
“High Performing Self-Insured Health Plans – The Key to Successful Stop-loss Captive Programs”

• 8/9/17 – NAHU Region 1 Meeting – Stamford, CT
“The Best gets Better: Getting the Most out of Your Self-Funded Plans”

Ron Peck’s Upcoming Speaking Engagements in 2017:

• 9/19/17 – CIC-DC 2017 Annual Conference – Washington, D.C.
“Cost Containment Strategies”

Tim Callender’s Upcoming Speaking Egnagements in 2017:

• 7/17/17 – Health Care Administrator’s Association TPA Summit – St. Louis, MO
“Conference Emcee”

Brady Bizarro’s Upcoming Speaking Engagements in 2017:

• 7/18/17 – HCAA TPA Summit 2017 – St. Louis, MO
“Ethics”


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Get to Know Our Employee of the Quarter:
Zachariah John

Congratulations to Zachariah John, the Phia Group’s Q2 2017 Employee of the Quarter!

“Zach constantly exhibits great customer service skills and work ethics, with quick responses and delivery on HelpDesk tickets, questions from other employees, and system enhancement builds. He is also incredibly friendly, and always has a great attitude. Even when something cannot be done as specifically desired by a user, Zach finds ways to meet their requirements through other available options and functionalities. He is a true subject matter expert, a great resource of knowledge, and a dedicated employee. There is no question; if Zach were not part of the Phia team, we would be nowhere near where we are now! His assistance and expertise is invaluable.”

Congratulations Zach and thank you for your many current and future contributions.

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Phia News

Babies

- Diaina Williams gave birth to Hannah on 4/19/2017

- Sabrina Centeio gave birth to Gia on 5/5/2017.

- Shannon Olson gave birth to Shelby Marie on 5/8/2017

- Lisamarie DeCristoforo gave birth to Kyrie on 6/20/2017

- Boris Senic’s wife gave birth to Matthew Ryan on 6/27/2017

Promotions

- Casey Balchunas was promoted from Claim Investigator to Claim Recovery Specialist III

- Lyneka Hubbert was promoted from Claim Recovery Specialist III to Case Analyst

New Hires

- Maria Sostre was hired as a Case Investigator

- Dante Tylerbest was hired as a Customer Service Representative

- Cori DeCristoforo was hired as a Customer Service Representative

- Elizabeth Pels was hired as a legal assistant

- Shaiti Alavala was hired as an IT Intern

- Robert Balchunas was hired as a PGC Intern

- Abigail Gatanti was hired as a PGC Intern

- Sandra Przychodzki was hired as a PGC Consultant

- Jess Watsky was hired as a PGC Consultant

- Francesca Russo was hired as a Legal Assistant

- Thadeous Washington was hired as a Plan Document Specialist

- Krishna Malyala was hired as an IT Data Architect

- Hannah Sedman was Hired as a Marketing Intern

- Nubian Gamble was hired as a Case Investigator

- Lennon Johnson III was hired as a Case Investigator

- Colin Patzer was hired as a Legal Assistant

- Jiyra Martinez was hired as a Case Analyst

 

Fun at Phia:

Phia’s Easter Egg Hunt

Phia's Backyard Barbeque



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info@phiagroup.com
781-535-5600

The Stacks - 3rd Quarter 2017
A Year Later . . . Montanile Remembered, Lessons Learned
By:  Christopher M. Aguiar, Esq.

Things were going so well.  In the game of subrogation cases being heard by the Supreme Court of the United States, self-funded benefit plans under the purview of ERISA were on a roll.  First, it was Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006), then U.S. Airways v. McCutchen, 133 S. Ct. 1537 (2013). Some even considered Great West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) to have been unfairly viewed as a loss for the subrogation industry because despite a decision against Great West Life, it provided the blue print followed by Mid Atlantic Medical Services, Inc. to elicit the favorable decision that led to the recovery in Sereboff.  As is the case in most games, momentum can be lost in the blink an eye.

Often times, when the momentum is heavily in one’s favor, the successors eventually let their guard down.  Enter Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 136 S. Ct. 651 (2016). Montanile was the victim of an accident with a third party who was driving under the influence of alcohol.  Montanile’s benefit plan paid approximately $120,000 in medical claims arising from the accident.  Following the accident, he sued the driver of the vehicle and obtained a settlement in the amount of $500,000.  Settlement negotiations between Montanile and the Plan broke down and his attorney warned the Plan that he intended to disburse the funds to Montanile.  The Plan did not respond until almost seven months later when it filed a lawsuit in which the Plan argued that even though Mr. Montanile had spent some or all of the settlement funds, the Plan still had a right to the funds.  The Supreme Court disagreed, stating that the Plan would have had an equitable right if it had “immediately sued to enforce the lien against the settlement fund then in Montanile’s possession” and that suing Montanile to attempt to attach his general assets was a legal remedy not available to the Plan under ERISA 502(a)(3).  Id. at 658.

Immediately following the period when the Court announced that it would be granting certiorari and hearing arguments in Montanile, subrogation experts rationalized what they had hoped would be the outcome; mainly, that the highest court in the land would not put forth a decision that effectively allowed plan participants to take the money and run – but we all knew better, and the Court affirmed our fears; that the Plan’s equitable remedy may be extinguished when funds are disbursed.

In the almost fourteen months since Montanile, there has not been much movement.  The case has been cited in several briefs and other cases, but there is nothing of a significant nature to report. That said, in the interest of keeping the issue fresh in everyone’s mind and not allowing the importance of a benefit plan’s third party recovery rights take a back seat, let us take the opportunity to recall the keys to a successful recovery program and some best practices – many of which have received favorable treatment in the few cases that have addressed the problem created by Montanile.

Plan Language

Perhaps the most important thing to remember is that Montanile did not actually change the law.  Plan language continues to be the most important consideration in determining whether a plan has a right to 100% reimbursement.  Regardless of whether the funds have been disbursed to the participant and/or whether they have been spent on non-traceable assets, if a plan’s language is inadequate, the plan will not be able to enforce its right to a full reimbursement.  Montanile did not change the decision in McCutchen, which clearly stated, “In a §502(a)(3) action based on an equitable lien by agreement—like this one—the ERISA plan’s terms govern. Neither general un-just enrichment principles nor specific doctrines reflecting those principles—such as the double-recovery or common-fund rules invoked by McCutchen—can override the applicable contract.” 133 S. Ct. at 1540.  Ensuring your plan’s language is as strong as possible remains imperative to maximizing recoveries.

Investigation is the Key

The Supreme Court in Montanile disagreed with the Plan’s assertion that its equitable remedy should be enforceable regardless of the whereabouts of the settlement fund and did not appear to have any pity for the burden on the Plan to protect its right.  The Court stated:
… The Board protests that tracking and participating in legal proceedings is hard and costly, and that settlements are often shrouded in secrecy.  The facts of this case undercut that argument.  The Board had sufficient notice of Montanile’s settlement to have taken various steps to preserve those funds.  Most notably, when negotiations broke down and Montanile’s lawyer expressed his intent to disburse the remaining settlement funds …unless the Plan objected …. The Board could have – but did not - object.  Moreover, the Board could have filed suit immediately, rather than waiting half a year.

Montanile at 662.

The Court’s statements here seem to indicate a pretty clear burden on plans to engage in their own investigations and take any and all steps necessary to protect their interests though it does seem to leave the door open for some flexibility in its decision in a situation where perhaps the facts are different.  For example, would the Court have ruled differently if the Plan did not “have sufficient notice” of Montanile’s settlement?  This appears to have been the case in AirTran Airways, Inc. v. Elem, 767 F. 3d 1192 (2014).   In Elem, the attorney ultimately obtained a settlement of over $500,000 against the responsible driver but told Air Tran that the settlement had been for the insurance policy limit of $25,000.  He then inadvertently sent a copy of the $475,000 check of which he had neglected to advise Air Tran. In this case, there appears to have been overt acts to deceive the Plan with regard to the settlement.  Would the Court have ruled the same way if faced with these facts?  

Regardless, to avoid situations like this, the Plan MUST HAVE an effective investigation unit.  All too often investigations are halted based on an insufficient self-report.  Everyone can agree that a participant that falls down the stairs at home does not present a recovery opportunity; but what if that person’s “home” is a rental apartment and the “fall down the stairs” resulted from a broken stair and faulty railing in the main hallway?  If the investigation unit is ill-equipped to ask the right questions or identify when someone is masterfully crafting answers to avoid the question without lying, a plan will miss recovery opportunities.

And the Key to Investigation is Data

A high quality investigation unit is a pivotal part of any recovery process, but access to a plan’s data is where it all begins.  The Court’s decision in Montanile effectively put a ticking clock on a plan’s recovery rights.  The earlier a plan is involved, the better chance it will have to be aware of potential recovery opportunities and on top of the availability and whereabouts of the potential recovery funds.  The most effective way to do that is to both be able to access claims data and also be able to expertly analyze and identify opportunities in the data.  When paired with the most cutting edge technology and resources, data can be utilized to find out about recovery opportunities quickly and put a plan in the best position to succeed.

Funds Disbursed? … All May Not Be Lost …

Certainly, Montanile threw subrogation professionals a bit of a curveball, but most of us knew this curveball was in the arsenal.  Ensuring that you can trace the funds is always the best option; but since Montanile, some courts have reminded us that even if the funds are disbursed, a plan may still have some options.  First, the Supreme Court in Montanile held that a plaintiff can “enforce an equitable lien only against specifically identified funds that remain in the defendant’s possession or against traceable items that the defendant purchased with the funds.... A defendant’s expenditure of the entire identifiable fund on non-traceable items ... destroys an equitable lien.” Montanile, at 658.  For the Plan to lose its right of recovery, the participant must spend the money on items that cannot be traced.  So, if the participant purchases a car, property, or asset of some sort, the plan may still be able to enforce its right.

Further, even if the funds are disbursed, the Plan may have a claim for accounting or disgorgement of profits.  In Homampour v. Blue Shield of California Life and Health Insurance Company, the Northern District of California stated the following:

Montanile does not entirely foreclose plaintiffs' claim. Plaintiffs have not alleged how or from what funds plaintiffs seek to recover disgorgement of profits. It is possible that plaintiffs will present evidence demonstrating that the profits they seek to disgorge are specifically identifiable and within defendants' possession.

Slip Copy, 2016 WL 4539480 at 8

Finally, even in a circumstance where a plan’s equitable remedy is completely lost, the plan may still have a legal remedy under a breach of contract theory.  In Unitedhealth Grp. Inc. v. MacElree Harvey, Ltd.., the U.S. District Court for the Eastern District of Pennsylvania noted that “assuming Ms. Neff had at that point already dissipated the settlement recoveries, then, pursuant to Montanile, the Plan could seek legal redress against Ms. Neff for breach of contract.” Slip Copy, 2016 WL 4440358 at 7,

Conclusion

Subrogation, like many cost containment options, is complicated.  Understanding the legal framework, the differences between the remedies that may be available, the advantages and drawbacks to the different options and utilization of different remedies, and having all the resources to recover effectively can be incredibly burdensome.  It requires experience, technical aptitude with data, and access to legal resources necessary to protect the plan’s rights.   Montanile served as a painful reminder, but all is not lost.  A plan can take steps to protect itself, maximize its recovery dollars, and ensure compliance with its fiduciary duty to enforce the terms of the plan and ensure its viability.

Don’t Let Your LOAs Leave You DOA
By: Kelly E. Dempsey, Esq.

Imagine a scenario where an employer has a long-time reliable employee that suddenly has a stroke of bad luck and is diagnosed with stage four cancer after being relatively asymptomatic and having never been diagnosed with cancer previously. The employee works with a team of medical professionals to come up with a game plan for beating this terrible disease. The employee quickly begins what will hopefully be life-saving treatment as soon as a game plan is mapped out. The claims start rolling in and the treatment starts taking its toll. The employee starts missing an hour here and there for appointments – and then a few hours for appointments and sickness –and then full days of work during treatment. When the employee is at work, the employee struggles to perform normal job functions and the employee is now unable to work because the rigorous chemotherapy regiment.

The employee decides it’s time to take a leave of absence to focus on treatment. To the dismay of the employee, though, the employee doesn’t have any additional leave available under The Family and Medical Leave Act (FMLA), since the full allotment of FMLA leave was recently exhausted while the employee and the employee’s spouse were finally bringing home their new adopted baby that they had waited so long for. Is this pulling at your heart strings yet?

The employer recalls that sometime in 2016, the U.S. Equal Employment Opportunity Commission issued guidance on a leave associated with The Americans with Disabilities Act (ADA)1 . Ah ha! The employer tells the employee they have just the solution – take a leave under ADA and the employment and leave situation can be re-evaluated in a few months. The employer tells the employee not to worry about anything except becoming cancer-free; the health plan coverage will continue as long as the employee needs it, even though the last of the employee’s paid time off is exhausted and no additional FMLA is available. In other words, the employer, via its health plan, is taking care of its employee, as so many employers try so hard to do. The employee is then signed up for the short-term disability policy which will help replace some income during the leave, and the employee is all set – there is continuing health plan coverage and some income replacement to boot. All is well.

Fast forward in time. Three months have passed, and the employee is making miraculous recovery. The employee is not ready to come back to work yet, but things are looking up and the employee is respected to return to work at some point in the near future. With the end of the health plan year approaching, the employer is attempting to get its ducks in a row for renewal season, which includes a stop-loss policy renewal. The cancer treatment claims are continuing to roll in and, as expected, the dollars keep adding up – but unfortunately, as anticipated, stop-loss is going to become a factor before renewal (ugh).

Claims are filed with the stop-loss carrier and all the typical supporting documents are provided. During the stop-loss carrier’s review, the carrier starts scratching its head. This individual has been on a non-FMLA leave of absence for over three months. The health plan document discusses FMLA and COBRA, but no other types of leave. Why was this employee still on the plan? Why was COBRA not offered when plan coverage seems to have terminated? The stop-loss carrier questions the employer and requests additional documentation to support eligibility; the carrier even generously says the employee handbook is acceptable. As everyone knows, the stop-loss policy is underwritten based on the plan document alone; anything contained within the employee handbook is entirely separate from the plan document and the stop-loss underwriting generally won’t take into account anything within the employee handbook. The employer thinks “boy, am I lucky!” *queue the suspenseful music*

The employer pulls out the employee handbook and skips to page 42 – Employer Leave Policies. The employer starts reading, “In addition to FMLA, employees that have exhausted paid time off and FMLA may be eligible for an additional extended leave of absence; referred to as non-FMLA leave. This non-FMLA leave is created to comply with the ADA’s requirement to provide a leave of absence as a reasonable accommodation and will be offered in addition to FMLA. Thus the non-FMLA leave will not run concurrently with FMLA. Additional information regarding how to request this leave and the additional requirements associated with this leave is further detailed herein:”

The employer’s wheels start turning: okay, this ADA leave doesn’t run concurrently with FMLA – great, that helps, but where’s the part about continuing health plan coverage? That must be in this handbook somewhere. The employer starts frantically turning pages looking for those magical words “employees are entitled the health plan benefits during a non-FM LA leave of absence.” But alas, no such wording is contained within the 163-page employee handbook.  The employer’s internal dialogue starts racing. “How can this be? We never meant for our employees to be out sick and not have health coverage. Doesn’t the ADA say we have to provide coverage to employees while they’re out on leave?” So you ask, “What now?” The bottom line is that there is no stop-loss reimbursement for the cancer claims, and quotes for renewal just added a few extra zeros.       

No need to review the gory details in depth – but one can imagine what happened during the plan and stop-loss renewal. The employer’s bank account is looking bleak, as are the proposed stop-loss renewal rates. The employer starts shopping other options despite having been with the same stop-loss carrier for years.  All the while, the employer just thinks “How did I end up here? All I wanted was to take care of my employees and give them the best benefits possible. Where did I go wrong?”  

It’s intuitive to think that a leave of absence from employment is coupled with a continuation of health plan coverage, especially if the leave is illness related; to the dismay of many, however, a continuation of coverage (other than COBRA) isn’t always coupled with a leave of absence. As shown in the scenario above, many employers struggle to align their health plan documents with their employee handbooks (and other internal policies) which subsequently increases the potential for a gap to arise between all the relevant documents. While most federal and state laws do not require a continuation of coverage, employers can choose to provide the benefit of continued coverage – but if the employer wants to ensure stop-loss reimbursement, the terms of continuation of coverage need to be clearly spelled out not only in the employee handbook, but also in the health plan document. The health plan document is key to showing proof of continued coverage, especially in a situation where stop-loss is relevant.

Many employers don’t even realize they have gaps between their policies and the health plan documents until it’s too late. All it takes is one large medical event - a cancer claim, an ESRD diagnosis, premature twins, a transplant – to discover that the documents the employers has aren’t airtight, and may not even align with the employer’s intent.

In summary, most employers need to do some homework. Go back to the office and take a look at the health plan document and the employee handbook. Do the two documents reference the same types of leave? Do the documents clearly indicate when coverage under the health plan is maintained during a leave? Do the terms of these documents meet the intent of the employer? What does the stop-loss policy say about eligibility determinations? Can the handbook be used to document eligibility in the health plan? What (if any) changes need to be made to minimize or eliminate gaps, to the extent possible?

Don’t let large unexpected claims leave you dead on arrival. Do the leg work now, and figure out what needs to be done to avoid being caught by surprise.

Kelly E. Dempsey is an attorney with The Phia Group. She is one of The Phia Group’s consulting attorneys, specializing in plan document drafting and review, as well as a myriad of compliance matters, notably including those related to the Affordable Care Act. Kelly is admitted to the Bar of the State of Ohio and the United States District Court, Northern District of Ohio.

[1] https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

Air Ambulance: Heads in the Clouds
By: Jon A. Jablon, Esq.

Health plans, third-party administrators, brokers, consultants, and stop-loss carriers are a bit baffled by air ambulance fees. Many are outraged or appalled or disgusted as well – but it seems that the overwhelmingly common feeling is sheer confusion over how this type of billing is permissible.

In all other markets – construction, textiles, grocery, you name it – the ordinary legal doctrine is that if there is no agreed-upon price for the goods or services, the seller may only charge the reasonable, fair market value of the delivered service or item. Admittedly, in most markets, prices are agreed upon beforehand – but in the long history of business, there have been enough instances of services rendered without agreed-upon pricing that courts have seen fit to devise controls for just those occasions.

And yet…air ambulance charges are frequently between 600 and 800 percent of Medicare rates for the same flight – and sometimes far, far more. In fact, one recently crossed my desk billed at over 2,600% of Medicare rates. That’s right – a whopping twenty-six times what Medicare would have paid for the same flight.

The disclaimer is that Medicare rates are not directly relevant to these flights, but instead used as a benchmark to inform what might be the fair market value, since unfortunately there isn’t much else to go on. Unlike many other medical providers, though, there seems to be a trend in the air ambulance billing industry where balance-billing is the norm, and many air ambulance providers have the devil-may-care willingness to bill patients which triggers the outrage and disgust that so often has health plans paying upwards of 90% of egregious balances to protect their patients.

Add to the egregious billing the notion that many flights are not medically necessary or otherwise appropriate to begin with, and it becomes clear that we have a problem on our hands.

At Northshore International Insurance Services, Inc.’s 26th Annual Medical Excess Claims Conference regarding Air Ambulance Claim Cost Containment Strategies, Jeff Frazier – a partner at Sentinel Air Medical Alliance, a firm specializing in curbing air ambulance costs – answered quite a few questions, including the following2 :

Question: Why is air ambulance ordered for someone who does not really need the service?

Answer: About 20% of the patients using air ambulance services really need the service. In a lot of cases, patients are not transported to the nearest hospital due to overflight or relationships between the facility and the air ambulance provider.

Question: How do you determine medical necessity?

Answer: Review of transport notes or ambulance run reports primarily to determine medical necessity. Sometimes notes from the hospital are also reviewed.

Question: Why do payors cave?

Answer: Fear of the provider balance due billing the patient.

Balance-billing is a major concern of all benefit plans that pay benefits at an amount not tethered to billed charges, which is an increasing trend. If not for balance-billing, it seems likely that all plans would pay objectively reasonable rates rather than percentages of billed charges.

“Taking Patients for a Ride” Article

A recent (April 6, 2017) Consumer Reports article penned by Donna Rosato – entitled “Air Ambulances: Taking Patients for a Ride3 ” – highlights some real-life scenarios in which air ambulance billing practices have proven to be, in a word, abusive. Aside from citing two separate sources quoting the average air ambulance flight at about $7,000 and about $10,000, the article notes that:

Rick Sherlock, president and CEO of the Association of Air Medical Services, a trade group, says that many air-ambulance patients are on Medicare or Medicaid, and that those programs pay $200 to $6,000 per transport. So, Sherlock says, air-ambulance operators must collect more from people with private insurance to make up the difference.

It should be questioned how equitable or ethical it is to jack up prices for one consumer because the provider has chosen to accept less money for another consumer. An air ambulance provider can always refuse to contract with CMS and choose to not accept Medicare or Medicaid – so to complain about not being paid enough seems a bit petulant.

Airline Deregulation Act

Further challenges are presented by the Airline Deregulation Act of 1978. Through this federal law, states are prohibited from regulating non-hospital affiliated air ambulance providers. That is, this law does not apply to the University of Whatever Health System’s own proprietary air ambulance services, since those are considered to be an “extension” of emergency services as opposed to a separate air ambulance provider – but the law does apply to FlyingAirTaxiMedicalAmbulance Co., Inc., since it is independent of an emergency room and is its own “carrier.”

Through the years there have been proposed changes to the federal Act to account for the disastrous effects it has on air ambulance consumers and health plans, but we’re not quite there yet.

Interestingly, many air ambulance carriers have resorted to quoting the Act when attempting to justify their billing – or at least when attempting to refute reasonable settlement requests. It seems that the most prevalent argument is against any notion of fair market value; the fact that state law is preempted with respect to air ambulance billing practices is cited as the reason that fair market value is not relevant to the carrier’s billing. But, although rooted in state contract law, is it reasonable to suggest that an implied contract for services is “state law,” sufficient to be preempted or overridden by the federal Airline Deregulation Act?

In other words, while the federal Act may supersede state laws aimed at regulating air ambulance providers (and others), the concept of fair market value is implicit in the non-contracted nature of air ambulance services. The issue is not one of some state law attempting to regulate air ambulances; fair market value has to do with the open market and general principles of contract rather than some particular state law.

The Airline Deregulation Act does not set a price or indicate what might be appropriate value. Instead, it dictates that individual states cannot pass laws to regulate the price of these flights. Fair market value is a general principal of contracting rather than some statutory price control, though; air ambulances are free to provide quotes up-front, but in most cases that is either not feasible or just not done. It seems that the general and basic principal of fair market value would still apply when no price is quoted or agreed-upon. The Airline Deregulation Act, after all, was passed to promote a free market economy rather than restrict it. It hardly serves to promote a free market when medical providers can gouge payors without warning.

One could even contend, somewhat ironically, that demanding surprise payment at an amount far in excess of the fair market value frustrates the very purpose of the same Airline Deregulation Act that these providers rely on to defend their charges.

Contract? What Contract?

Here’s where things get even more interesting. Independent air ambulance providers tend to be universally out-of-network. There are a couple of exceptions, but in general, it is near impossible to find an air ambulance provider (unrelated to a hospital) that has contracted with a PPO network to accept discounted fees – primarily due to the belief that the Act guarantees them their full billed charges no matter what, and that there’s no reason to join a network and accept discounted charges.

Regardless of that belief, another question worthy of consideration is whether the out-of-network flights can truly be considered non-contracted. Contracts are a funny thing and they come in many forms; while there is no contract to pay a certain specified rate or percentage of billed charges – indeed, a claim that would generally be considered a “contracted claim” – consider that the patient (if conscious and competent) almost always signs the provider’s “assignment of benefits” form. On that form, the patient says “if my insurance doesn’t pay you, in full, 100% of your bill, then I, the patient, agree to be responsible for the remainder.”

For some bizarre reason, courts in this country have indicated that the patient’s agreement to pay some unspecified amount supersedes any ordinary market properties. If the patient weren’t a patient but a homeowner, and a painter said “you will pay me what I bill you for this job” and the homeowner agreed, courts have always opined that while the consumer is of course responsible to compensate the painter for its service, the painter is responsible for billing only that which is reasonable – measured as the fair market value of the services. In the medical industry, though, there are very few (and largely ineffectual) statutory or common law pricing controls. Even the simplistic concept of fair market value, which is perhaps the most basic of all pricing principles, does not apply in ordinary cases. It goes without saying that this needs to be fixed.

What Can You Do?

Whoever you are – whether a health plan sponsor, third-party administrator, broker, MGU, reinsurer, or anyone else working in the self-funded industry – air ambulance charges are worrisome. If they don’t concern you…they should.

Negotiating claims can be an option, as is the case with other out-of-network medical claims, and there are also other, more novel solutions out there in the marketplace.

Just as programs have developed to assist payors in reducing dialysis billed charges, so are there companies and services that are specifically geared toward controlling air ambulance charges. Specialists in this field can provide assistance from a regulatory and financial standpoint – and ensuring proper utilization is also crucial to ensuring that payors are not gouged.

We urge payors to discuss options with a broker or consultant and ask about some of the solutions out there that have helped save health plans countless dollars of unreasonable and unnecessary air ambulance exposure.

About the Author

Attorney Jon Jablon joined The Phia Group’s legal team in 2013. Since then, he has distinguished himself as an expert in various topics, including stop-loss and PPO networks, focusing on dispute resolution and best practices. In 2016, Jon assumed the role of Director of The Phia Group’s Provider Relations department, which focuses on all things having to do with medical providers – including balance-billing, claims negotiation, PPO and provider disputes, general consulting, and more.


[2] http://www.niis.com/2015Conference/Air%20Ambulance%20Claim%20Cost%20Containment%20Strategies.pdf

[3] http://www.consumerreports.org/medical-transportation/air-ambulances-taking-patients-for-a-ride