Phia Group

The State of Paid FMLA: Thirteen States and Counting

On February 15, 2023
Crucial healthcare and employee benefits issues were addressed during President Biden’s recent State of the Union, including a commitment to expanding paid family and medical leave. Thirty years ago, the Family and Medical Leave Act (FMLA) was passed and created new opportunities for employees faced with the difficult decision of having to choose between work and family. FMLA allows eligible employees to take unpaid, job-protected leave for family and medical reasons and continue their group health coverage.

SPD Payment Limitations Under the No Surprises Act

On February 9, 2023
Ah, the Plan Document! It’s the “supreme law of the land” governing the health plan’s benefits. Would that make ERISA the Declaration of Independence of self-funding, maybe? Freedom from the tyranny of state or federal laws that attempt to make their own rules for the plan rather than letting the plan govern itself?

Are Non-Competes Out the Window?

On February 2, 2023
Not just yet. Recently, the Federal Trade Commission (FTC) proposed a new rule that would ban post-employment non-competition agreements for all workers, including independent contractors, in nearly all workplaces. The proposed rule falls under Section 5 of the Federal Trade Commission Act, which bans unfair methods of competition. This proposed rule would greatly impact the entire healthcare industry.

Robotic Lawyers – the Future of Small Claims Courts?

On January 24, 2023
A couple months ago, Forbes magazine published a story hypothesizing five professions that could be eliminated by Artificial Intelligence over the next decade: factory workers, couriers, investment analysts, customer service reps, and security guards. It sounds farfetched, but could “small claims attorney” also join the dreaded list in the not-too-distant future? An intrepid startup, DoNotPay, which bills itself as “the world's first robot lawyer,” has designs on such a development—and perhaps even bigger things—coming to fruition.

No Matter the Remedy – No Language, No Luck!

On January 23, 2023
Recently, the 9th Circuit, a jurisdiction that has historically not been kind to benefit plans engaging in third party recovery activity, issued a decision that gives life to benefit plans whose participants shirk their obligations to reimburse their benefit plans from settlements they obtain in third-party liability cases.

Accommodating Pregnant Workers: Enhanced Protections Under New Legislation

On January 18, 2023
On December 29, 2022, President Biden signed the Consolidated Appropriations Act of 2023 (CAA 2023). Among many, many other things, the CAA included a key law expanding protections for pregnant workers. This law addresses significant limitations in the current regulatory framework for these workers, particularly under the Americans with Disabilities Act (ADA) which does not consider pregnancy a covered disability, and the Pregnancy Discrimination Act (PDA) which does not require accommodation (beyond those afforded to other similarly situated employees).

New Year, New Rules – But Don’t Forget About the Old Ones

On January 3, 2023
The self-funded health plan industry continues to evolve every year based on new rules, guidance, and medical advancements; however, the Department of Labor (DOL) doesn’t overlook old rules either. In case you missed it, there was a case in mid-2022 that seeks to remind us that the DOL is still considering all Affordable Care Act (ACA) rules when they review complaints and perform audits. In Walsh v. Board of Trustees of Local 272 Welfare Fund and Local 272 Welfare Fund, 22-cv-592 (S.D.N.Y August 2, 2022), the DOL filed suit against a Taft-Hartley welfare plan and its trustees for alleged violations of certain amendments that the ACA made to ERISA, including the maintenance of grandfathered status.

Second Circuit Affirms Private Right of Action for MAO's in Aetna Life Insurance Company v. Big Y Foods Inc.

On December 22, 2022
The Medicare Advantage program, created in 1997, allowed private health insurance companies (“Medicare Advantage Organizations” or “MAO’s”) to contract with CMS to deliver Medicare benefits for a fixed fee per month per enrollee (“capitated payment’). Medicare Advantage Organizations have become increasingly popular and in 2022 close to half of all Medicare eligible beneficiaries are enrolled in a Medicare Advantage Plan. While the Medicare Secondary Payor Act and Federal Codes state that MAOs have the same recovery rights as traditional Medicare, the primary cause of action for MAOs to enforce their rights is through a freestanding provision in the MSP Act, which is separate from the provisions granting the United States the right to seek reimbursement that “there is established a private right of action for damages (which shall be in an amount double the otherwise provided) in the case of a primary plan which fails to provide for primary payment…” 4s U.S.C. 1395y(b)(3)(A). This section does not identify which individuals or entities may take advantage of this private right of action nor against whom these actions may be taken.

Debunking Myths About COVID

On December 21, 2022
In sharing his thoughts about the ongoing pandemic at the MAHP (Massachusetts Association of Health Plans) 2022 Annual Health Care Conference held at the Seaport Hotel in Boston on November 17, Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota, made it a point to debunk several widely circulated myths while emphasizing that there continues to be an illusion of knowledge about what will transpire next.

How the Adderall Shortage is Affecting Millions of Americans

On December 13, 2022
Across the country, Americans with attention-deficit hyperactivity disorder (ADHD) are struggling to find good alternatives to the highly popular stimulant Adderall, which has been in short supply in recent months and will likely not be sufficiently restocked until early 2023 due to skyrocketing demand and manufacturing delays. Because of the shortage, many patients and their families have been forced to try alternative treatments or to go without their medication altogether. This has led to frustration and concern among patients and advocates alike, who argue that the shortage is putting the health and well-being of those who rely on Adderall at risk.

Healthcare Subrogation and Reimbursement and Why it Matters

On December 8, 2022
Most self-funded employee welfare benefit plans contain a statement in their plan document which allows the Plan to recover benefits in the event a third party caused a member’s injuries. The strength of a Plan’s language is vital to the extent the Plan recovers from the proceeds of a settlement or judgment.

NSA’s Model Notice: Doing Your Own Thing

On November 14, 2022
It’s November, and most TPAs are neck-deep in No Surprises Act compliance. This is a busy time of year as it is – but with new, daunting requirements piled onto a TPA’s usual renewal-time craziness, this is a special year. Some have opined that the last time they had a year like this was when the ACA was first passed, and that’s saying something!

The Fair Labor Standards Act (FLSA): Who Benefits and Who Doesn’t

On November 4, 2022
It’s hard to fathom today, but less than a century ago, America was a country in which elementary-school-aged children were accustomed to laboring in coalmines, glass factories, and shipyards; an untold number of employees earned less than $1 per day; a typical workweek consisted of six 12-hour shifts. Such was life for tens of millions of Americans barely scraping by during the depths of the Great Depression before FDR implemented his landmark New Deal, which, among other initiatives, provided workers greater protection with the passage of the Fair Labor Standards Act (FLSA).

The 2022 SIIA National Conference: What Lies Ahead for the Self-Funded Industry

On November 3, 2022
The SIIA National Conference, the world’s largest self-insurance industry event, resumed early last month at the JW Marriott Desert Ridge Resort and Spa in Phoenix, Arizona. The three-day event, which ran from October 9-11, covered a litany of timely topics, including a preview of the midterm elections (and impending regulatory changes); how evolving digital tools will enhance patient care; means by which insurance companies are accounting for emergent—and exorbitantly expensive—cell and gene therapies; the process by which captive insurance is countering “uninsurable” risk challenges; the multi-faceted relationship between TPAs and brokers; PBM business practices; far-reaching compliance matters such as the relationship between the No Surprises Act (NSA) and reference-based pricing (RBP) as well as the quest to obtain sufficient information for NQTL testing; and the booming growth of the medical stop-loss market in light of increasingly more U.S. employers transitioning to self-insurance.

RxDC Reports Are Almost Due – Make Sure You Are on Track for Compliance

On October 27, 2022
Our consultants have been receiving tons of questions in the last month about the upcoming Prescription Drug and Health Care Spending reporting (RxDC) requirements. The first two reports are due on December 27, 2022, for the 2020 and 2021 calendar years.