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There’s a New Notice on the Block

By: Nick Bonds, Esq.

On July 17, 2019 the Internal Revenue Service issued Notice 2019-45, and, if our consulting question inbox is any indication, caused quite a stir in our community. At least among the groups offering HSA-qualified high deductible health plans.

We have been inundated with a deluge of inquiries, ranging from the vaguely curious to the slightly manic: Are they changing the definition of preventive services? Does this change what we have to cover? How do we account for this in our plan document? What is the airspeed velocity of an unladen swallow?

Okay, that last one might be from Monty Python, but seriously everyone – relax.

This new rule essentially stems from an executive order President Trump issued on June 24, his “Executive Order on Improving Price and Quality Transparency in American Healthcare to Put Patients First,” which tasked the Treasury Department with a few homework assignment. Among these was Section 6(a), which called for guidance to expand the ability of patients to select high-deductible health plans (HDHPs) that can be used alongside an (HSA), and that these plans cover low-cost preventive care, before the deductible, to help maintain the health of people with chronic conditions, all within 120 days.

Five weeks later, the Treasury delivered, and the IRS introduced Notice 2019-45 to the world. The notice’s stated purpose is to “expand the list of preventive care benefits permitted to be provided by a high deductible health plan (HDHP) . . . without a deductible, or with a deductible below the applicable minimum deductible (self-only or family) for an HDHP.”

Our interpretation of this notice is fairly straightforward: it does not create any requirements for an HDHP to cover the listed services differently. Rather it gives HDHPs the ability to cover fourteen new services and items at 100% without applying their deductible, and without endangering their HDHP status.

The whole point of this notice is to help individuals utilizing an HDHP to manage their chronic conditions, like asthma, diabetes, and heart disease. A growing majority of employers are offering their employees HDHPs in tandem with a Health Savings Account. This rule offers those employers greater flexibility and eases the strain high deductibles put on the wallets of employees with chronic conditions.

Section 6(b) gave us something else to look forward to: Treasury has 180 days to propose regulations that could potentially expand eligible medical expenses under Section 213(d) to include direct primary care and healthcare sharing ministries. Forthcoming regulations could open some exciting possibilities for employers contemplating on-site clinics. So stay tuned.


Health Care “Cadillac Tax” Repeal Bill Passed by the House

By: Philip Qualo, J.D.

The U.S. House of Representatives recently voted to abolish the so-called "Cadillac Tax" on employer-sponsored, high-value health plans, which was scheduled to take effect in 2022. If the Senate passes the measure, and the president signs it into law, the threat employers have faced from the tax will finally be over. The House passed H.R. 748, the Middle Class Health Benefits Tax Repeal Act, with an overwhelming bipartisan vote of 419 to 6. The Senate will now decide whether to vote on the measure.

The Cadillac Tax, part of the Affordable Care Act (ACA) passed in 2010, is a 40 percent excise tax on the cost of employer health plans in excess of annual cost thresholds. The tax, originally intended to take effect in 2018, was intended to help generate tax revenue to help fund ACA subsidies for marketplace plans. Due to heavy opposition, the effective date of the Cadillac Tax has been delayed twice by Congress and had now been scheduled to go into effect in 2022. It is calculated based on: the costs of plan premiums (regardless of whether employer- or employee-paid); employer contributions and employee-elected payroll deductions to health savings accounts and flexible spending accounts; employer contributions to health reimbursement arrangements; the cost of group wellness programs; the value of coverage in onsite medical clinics; and certain other health benefits. The Cadillac Tax would have applied to both fully-insured and self-funded health plans.

According to a new analysis by the nonprofit Kaiser Family Foundation, the tax would have affected 1 in 5 employers offering health benefits in 2022 unless employers reduced the value of their health plans. As currently projected, if the average plan cost to cover employees and dependents was more than $11,200 for individual coverage and $30,150 for family coverage, employers would have had to pay the tax on plan costs for each covered person above those threshold amounts.

Employers and advocacy groups have vehemently opposed the Cadillac Tax, noting that although this tax was intended to only hit Americans with “gold-plated” plans, modest plans covering low and moderate-income working families were projected to trigger the tax. The Alliance to Fight the 40 has argued that this tax would have disproportionately taxed the health plans of women, seniors, working middleclass families, the sick, and the disabled. They also noted that that small businesses that already struggle to offer health care coverage would have also been heavily penalized.

We will continue to provide updates on the Cadillac Tax as the bill makes its way through the Senate.


Trump’s Executive Order on Transparency: How it Will Effect Each Segment of Our Industry

On June 24, 2019, President Trump issued his “Executive Order on Improving Price and Quality Transparency in American Healthcare to Put Patients First.” This Order requires hospitals to publicly post their prices, and is designed to give healthcare consumers more choice and better decision-making capabilities.

Join The Phia Group’s legal team as they discuss the executive order point by point; they’ll touch on what they like and don’t like about it, and – more importantly – what this all means for you.

Click Here to View Our Full Webinar on YouTube

Click Here to Download Webinar Slides Only


Final Individual Coverage HRA Rule Released

By: Andrew Silverio, Esq.

Recently, the Trump administration released a finalized rule establishing the conditions under which employers can utilize HRAs to subsidize their employees’ purchase of individual coverage, including coverage on the Exchange.

Under the rule, employers are able to provide enrollees with a fixed dollar amount, tax exempt, which can be used to buy individual coverage.  While the rule doesn’t relieve the employer’s obligations to provide group coverage, if applicable, participation in the individual coverage HRA is conditional upon having individual coverage, which includes Medicare.  This requirement is applicable for the employee and any dependents.  Additionally, the individual coverage must satisfy certain requirements to qualify under the rule, allowing an individual to utilize the ICHRA, and individuals must attest that they have suitable individual coverage.

Notably, the model notice and attestation (available at https://www.cms.gov/CCIIO/Programs-and-Initiatives/Health-Insurance-Market-Reforms/Downloads/HRA-Model-Notice-PDF.pdf and https://www.cms.gov/CCIIO/Programs-and-Initiatives/Health-Insurance-Market-Reforms/Downloads/HRA-Model-Attestations-PDF.pdf) provided by the administration contain no disclosure or explanation that certain coverage, such as certain limited-benefit plans or health sharing ministries, would not satisfy the rule’s requirements relating to the suitability of other coverage.

Critics of the rule have pointed to a few plausible factors in arguing that it will raise the price of individual coverage in the exchanges, both by incentivizing sicker employees within a workforce and employers with sicker employee populations overall to feed high risk lives into the individual markets.  Additionally, it has been noted that older participants may not benefit sufficiently from the ICHRAs, because the limitations on how much the contribution amounts can differ based on age will be insufficient to compensate for the naturally disproportionate premiums those participants will encounter in the individual market.

Finally, the content of the rule aside, the quick turnaround time of a 01/01/2020 effective date is leaving state marketplaces scrambling, with many saying it will be simply impossible to implement sufficient changes in just a few months to be equipped to manage enrollment accurately under the new rule.

This is a significant development, with implications in the ACA, tax code, employment law, and other fields.  Court challenges are likely, but as of now the rule stands to go “live” in just a few months.  Reach out to The Phia Group at PGCReferral@phiagroup.com with any questions or for more detailed information on any of the rule’s contents.


The Phia Group's 3rd Quarter 2019 Newsletter


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

 


The Book of Russo:
From the Desk of the CEO

Greetings from the beautiful city of... Braintree, Massachusetts! We are excited about the weeks and months ahead, where - like the weather - things are heating up at The Phia Group. Unlike some others in the industry who look at the summer as a time to kick back and relax, we here at The Phia Group are putting the finishing touches on not one, but TWO huge offerings and upgrades in the coming weeks. When it comes to our mission of empowering plans, and ensuring employers can offer their employees and families the highest quality benefits and health care, for the lowest cost, we never rest. Indeed, we know that this is the time of year you spend preparing for the upcoming renewal and retention season. The services and expertise we provide today will be the tools you use to ensure your continued growth and success tomorrow. I hope you are enjoying your summer thus far - Happy reading, and don't forget the sunblock.


Service Focus of the Quarter: Plan Appointed Claim Evaluator® (PACE)
Phia Group Case Study
Phia Fit to Print
From the Blogosphere
Webinars
Podcasts
The Phia Group’s 2019 Charity
The Stacks
Phia’s Speaking Events
Employee of the Quarter
Phia News

 

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

Some years ago, in response to growing industry concerns regarding fiduciary duties, The Phia Group created its Plan Appointed Claim Evaluator (PACE) service. PACE is a fiduciary transfer service addressing final-level internal appeals. It is designed to help plans ensure they made correct determinations, thereby insulating the health plan from liability and allowing the Plan Administrator to focus on its core business rather than difficult fiduciary determinations.

PACE includes:

• Plan Document and stop-loss policy “Gap Reviews,” to both ensure compliance as well as eliminate coverage gaps, all while also ensuring PACE readiness;
• Advanced-level webinars exclusively for PACE clients;
• Assessment of eligible final internal appeals via written directives; and,
• Unsurpassed legal analysis, clinical review and access to URAC-accredited IROs (with PACE covering all external review costs).

Beginning August 2019, we will also begin offering complimentary PACE Certification – whereby your organization can enhance your PACE business, improve your internal appeals processes, ensure regulatory compliance, and improve your business as a whole. Chapter One of PACE Certification explores the ins and outs of self-funding; Chapter 2 takes a deeper dive into the laws and regulations applicable to self-funded health plans; Chapter 3 explains what PACE is, how it works, and how it can best be utilized.

Tim can be reached by phone at 781-535-5631 or by email at TCallender@phiagroup.com.

 

Phia Case Study: The Tale of the Reluctant ASC

The Phia Group was presented with a file, as part of its Phia Unwrapped service, where a patient had visited an out-of-network ambulatory surgery center (ASC), and was receiving a balance-bill following the plan’s payment. The health plan adjudicated the claim based on 145% of Medicare rates, whereas the claim was billed at a whopping 1,430% of Medicare. Needless to say, a large balance ensued.

The ASC informed The Phia Group’s team that it would not accept any reduction in its billed charges, under any circumstances, and it cited a dozen bogus arguments about how state and federal law prohibited the health plan from utilizing this particular payment methodology.

The Phia Group’s legal team put together a strong response to each argument raised by the ASC; we then followed up after one week, and were told the letter was still being reviewed. We followed up after another week, and were told the same thing. Fast-forward two months: same answer. Still being reviewed!

Our legal team pressured the ASC for a response, informing them that our client was considering closing its file and walking away with no possibility of additional payment.

Two weeks later, we finally received a positive response, and our efforts yielded an ultimate settlement at only 18% of billed charges.

 


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Fiduciary Burden of the Quarter: Managing Conflicting Agreements

Have you ever seen a health plan incur an in-network claim that is billed at many times the appropriate rate defined in the Plan Document? If so, you’re not alone.

Have you ever reviewed that in-network claim against the terms of the Plan Document, and then denied the portion exceeding the Plan Document’s terms? If so, you’re still not alone.

Have you ever received pushback from that in-network provider, demanding the network rate? If so, you’re still not alone.

It’s certainly true that the Plan Document prescribes certain limitations on claims payments – but it’s also true that network contracts don’t take those limitations into account, and instead require payment based on a percentage off billed charges. Not appropriate billed charges, or allowed billed charges; just billed charges.

For that reason, it’s crucial to be aware of what all the relevant contracts say; the Plan Document and the network contract are conflicting, but neither “overrules” the other. That is, the payor has promised to pay two separate amounts – one in the Plan Document and one in the network contract – and of course medical providers are going to expect the higher of those two amounts. Add to that the fact that the provider has privity to the contract guaranteeing the higher amount, and we’ve got a situation on our hands.

Moral of this story? Make sure your Plan Document language is synced up to your network contracts! Try to avoid placing a hard limit on all claims payments, instead focusing on non-contracted claims, since once a claim has a contract whereby it must be paid at a certain rate, the Plan Document’s global limitations across all claims cannot be applied without violating that contract!

 

Success Story of the Quarter: The Non-Responsive Plaintiff’s Attorney

The Phia Group identified a particularly large potential recovery for a client. The patient in question was involved in a motor vehicle accident, and had engaged legal counsel to pursue damages from a wealthy defendant. It seemed likely that this patient would receive a settlement far larger than the health plan’s lien, and The Phia Group put the patient’s attorney on notice of the lien.

Well, we tried, anyway.

The attorney didn’t respond to our letter. Or our phone call. Or any of our subsequent letters or phone calls. Our legal team explored all available avenues, and even spoke to former law firm partners of the attorney, but to no avail.

Finally, our attorneys drafted a very strongly-worded letter, reminding the attorney of his legal obligations, and – with our client’s blessing – informing the attorney that if he did not live up to his legal and ethical obligations, we would gladly have the state bar issue him a more stern reminder of his responsibilities as an attorney.

Our legal team received a prompt, courteous, and apologetic response from the attorney, along with an assurance that the plan will be reimbursed in full from that settlement (assuming the payout exceeds the plan’s lien).

 


 

Phia Fit to Print:

• BenefitsPro – Medical cannabis: Should your health plan cover it? – June 26, 2019

• BenefitsPro – Impact of HHS’s Proposed ACA Revisions to Employers – June 19, 2019

• Self-Insurers Publishing Corp. – Seasons of Change: How to successfully implement evolving healthcare trends – June 10, 2019

• BenefitsPro - What is subrogation, and how does it affect health benefit plans? – June 3, 2019

• BenefitsPro – Paid leave policies: Picking up steam or is it just hot air? – May 20, 2019

• Self-Insurers Publishing Corp. – Transparency - A Clear and Almost-Present Danger? – May 5, 2019

• BefefitsPro - Getting ahead of ERISA disbursement claims – April 8, 2019

• Self-Insurers Publishing Corp. – The Lien, Mean, Subrogation Machine – April 4, 2019

 



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From the Blogosphere:

List Prices in TV Ads: Will This Help? Price transparency may be making its way to a TV near you.

Big Pharma Executives Testify Before Congress (Again). This could be a tough pill to swallow for big pharma companies.

The Final AHP Rules Take a Hard Hit! There were a lot of bumps and bruises along the way.

New DOL Opinion Letter: Employers May Not Delay FMLA Leave Designations. Do you have questions about the FMLA? Here are your answers.

Be Transparent – Tell Me What You Really Want! The most expensive options aren’t always the best options.

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



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Webinars

 

• On June 20, 2019, The Phia Group presented, “The Impact of State, Federal Laws, and Current Market Trends on Self-Funding,” where we share some interesting perspectives on the current legislative climate.

• On May 23, 2019, The Phia Group presented, “To Pay, or Not to Pay … The Guide to Handling Claims, Denials, and Appeals,” where we discussed the good, bad, and ugly truths about the claims process, and how to safely navigate the various TPA and health plan duties associated with it.

• On April 22, 2019, The Phia Group presented, “Evolving Healthcare Issues and Events You Need to Know,” where we discussed some of the most relevant topics affecting our industry, and explain what they mean to you and your business.

Be sure to check out all of our past webinars!



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Podcasts:

Empowering Plans
 

• On June 26, 2019, The Phia Group presented “Surprise? Balance Bills!,” where our hosts define surprise balance billing and discuss movements to curb them (at the State and Federal levels).

• On April 12, 2019, The Phia Group presented “A Healthcare Free-for-All,” where our hosts, Adam, Ron, and Brady tackle the most pressing issues facing our industry, including surprise emergency room bills, drug pricing, medical necessity, and employee incentive programs. Face of Phia

 

Face of Phia

 

• On June 12, 2019, The Phia Group presented, “Glutton for Punishment,” where our hosts sit down with Amanda Lima, as she celebrates more than six years with Phia and working closely with Adam.

• On May 7, 2019, The Phia Group presented, “Pat 'the Man' Santos Has Got it In the Bag,” where our hosts sit down with Pat 'the Man' Santos – our silent producer.

• On April 17, 2019, The Phia Group presented, “Reminiscing with Andrew,” where our hosts, Adam and Ron, reminisce on Andrew Silverio's Undergraduate adventure.

• On April 5, 2019, The Phia Group presented, “Tales From The Lost Filing Room,” where our hosts, Adam and Ron, dig up tales from the days of old with future industry leader and veteran employee, Amanda Grogan. Tales From the Plan

 

Tales From the Plan

 

• On June 14, 2019, The Phia Group presented, “Putting the Benefit in Benefit Plan with Jennifer McCormick,” where our hosts, Adam and Ron, interview The Phia Group’s Sr. VP of Consulting, Jennifer McCormick, about her own experience as a consumer of healthcare and member of The Phia Group’s health plan.

Be sure to check out all of our latest podcasts!

 

 



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The Phia Group’s 2019 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 2019 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 youths have been welcomed through their doors. Currently, they serve more than 1,000 boys and girls ages 5-18 annually through the academic year and summertime programming.

 

Silent Auction

The Phia Group hosted a silent auction to help raise money for the Boys & Girls Club of Brockton. Due to some generous bids and donations made by our valued clients, we were able to raise $12,335.00 for the Boys & Girls Club of Brockton. We couldn’t have done it without the help of our amazing clients and team. If you are interested in donating to the Boys & Girls Club of Brockton, please visit their website today. Every dollar goes towards helping a child in need.

 

Phia Wiffle-Ballers

The Phia Family is one good-looking group of wiffle-ballers! Our wiffle ball team entered the 8th annual John Waldron Memorial Wiffle Ball Tournament, where we were dominated the field. We were up against some fierce competition, including some courageous Brockton Fire Fighters, that most certainly brought the heat. This tournament raised over $30,000! We are proud of the work our team did.

 



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The Stacks

Seasons of Change: How to Successfully Implement Evolving Healthcare Trends

By: Jennifer M. McCormick, Esq. – June 2019 – Self-Insurers Publishing Corp.

Have you ever wondered whether you paid more for your flight than the person next to you on the airplane? What about whether you could be doing more (or less) to save money and time? I’m confident we all frequently ponder what we can do differently to save.

Whether big or small savings, we’re constantly looking for ways save money in all areas of our life. Dinner budgets, car insurance, clothes, general spending - you name it and surely, we have contemplated whether we can reduce that expense. But we also try to balance cost against convenience, expecting to save money and time. For example, we can click a couple of buttons on our phone and groceries appear at our doorstep two hours later, saving us both money and time.

Click here to read the rest of this article


Transparency - A Clear and Almost-Present Danger?

By: Ron E. Peck, Esq. – May 2019 – Self-Insurers Publishing Corp.

Transparency in healthcare, and pricing of care, has been a hot topic – especially for those in our industry – for quite some time. That flame has been fed recently by an increase in regulatory and legislative attention. About one year ago, a bipartisan group of Senators unveiled their intention to launch a healthcare price and quality information transparency initiative, and the feedback has been all over the map.

Click here to read the rest of this article

 

The Lien, Mean, Subrogation Machine

By: Maribel Echeverry McLaughlin, Esq – April 2019 – Self-Insurers Publishing Corp.

In 1990, the United State Supreme Court ruled in FMC Corp. v. Holliday, that state law will not prevent a private self-funded plan governed under ERISA from obtaining reimbursement. Additionally, the Court ruled that any state law that is contrary to ERISA would be preempted if the Plan’s language so provides or there is a clear contradiction to the federal law.

For years, this law went unchallenged until 2006, when Mr. and Mrs. Sereboff were involved in a motor vehicle accident, and the Mid Atlantic Medical Services Employee Health Plan paid related claims in the amount of $74,869.37.

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 2019 Speaking Engagements:



• 1/9/2019 – FMMA Conference – Austin, TX

• 2/27/2019 – Sunlife 2019 MVP Academy – Denver, CO

• 3/8/2019 – UnitedAg Conference – Anaheim, CA

• 3/19/2019 – SIIA Self-Insured Health Plan Executive Forum – Charlotte, NC

• 3/21/2019 – CGI Business Solutions Seminar – Woburn, MA

• 3/26/2019 – HFTA Broker Meeting – Tyler, TX

• 4/3/2019 – BenefitsPRO Broker Expo – Miami, FL

• 4/5/2019 – Pareto Conference – Nashville, TN

• 4/7/2019 – Captive Symposium – Cayman Islands

• 4/8/2019 – National Beer Wholesalers Association Legislative Conference – Washington DC

• 4/12/2019 – FMMA 2019 Annual Conference – Dallas, TX

• 4/23/2019 – Johns Hopkins Industry Education Series – Baltimore, MD

• 4/24/2019 – Sunlife 2019 MVP Academy – Kansas City, MO

• 4/25/2019 – BevCap’s Best Practices Workshop – Orlando, FL

• 4/26/2019 – Society of Professional Benefit Administrators Annual Conference – Washington, D.C.

• 5/2/2019 – MassAHU Benefest 2019 Conference – Westborough, MA

• 5/14/2019 – Cypress Unversity – Las Vegas, NV

• 5/30/2019 – Contrarian Captive – Austin, TX

• 6/11/2019 – Leavitt Conference – Big Sky, MT

• 7/16/2019 – HCAA TPA Summit – Dallas, TX

• 7/31/2019 – 2019 MVP Academy – Wellesley, MA

• 8/20/2019 – Pritchard & Jerden Employee Benefits Forum – Brookhaven, GA

• 9/30/2019 – SIIA National Educational Conference & Expo – San Francisco, CA

• 10/27/2019 – 2019 Annual NASP Conference – Washington DC

 

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Get to Know Our Employees of the Quarter:
Katie Delaney & Corrie Cripps

Congratulations to Katie Delaney & Corrie Cripps, The Phia Group’s Q3 2019 Employee of the Quarter!

Katie and Corrie have both been dedicated employees at The Phia Group for many years, and we are so fortunate to have them on our team. With Corrie being a Consultant, II and PGC Internal Process Auditor, and Katie being a Senior Training & Development Specialist, it is clear that they are both key players in the success we have at The Phia Group.

 

Congratulations Katie & Corrie, and thank you for your many current and future contributions.

 

 


Phia News

PACE® Certification is Almost Here!

The PACE Certification program will educate you using 3 distinct chapters of information:

Chapter One
Explore the ins and outs of self-funding while learning about its risks and rewards. This chapter will transform any individual into a self-funding pro.

Chapter Two
Take a deeper dive into the laws that apply to self-funded plans. We cover it all, from federal preemption to adverse benefit determinations and appeals.

Chapter Three
Explain what PACE is, what PACE does, and how it's obtained, implemented, and utilized.

The PACE Certification program is free of charge and will create immense value for your organization. By going through the Certification program, you, or a select person, or team, within your organization, can become PACE Certified. Once PACE Certified, the Program participant(s) will become highly educated PACE business owners and will serve to assist your organization in growing your PACE business, enhancing your PACE revenue, and assuring your appeals processes are the most compliant and best in the industry. Those who complete the Certification will also receive a PACE Certification Fact Sheet, providing an easy to understand summary of the content and best practices covered, which will allow you to maximize the lessons learned within your business.

Additionally, the PACE Certification program will provide education on self-funding in general, claims and appeals regulatory education, and overall best practices surrounding fiduciary duties, claims, and appeals.

The PACE Certification program will be released to all those interested starting August 1, 2019.

Please see the PACE Certification flyer, as well as this video for more information.

Please contact Tim Callender (tcallender@phiagroup.com), or Garrick Hunt (ghunt@phiagroup.com), for more information.

 

Śmigus-dyngus at Phia

On April 22nd (Easter Monday), The Phia Family celebrated a traditional Polish holiday called Śmigus-dyngus, with a Polish lunch graciously provided by our CEO, Adam Russo. Normally, the holiday includes a big water fight, but we decided not to go down that route. We did however have some delicious Polish meats and pastries, accompanied by a delicious Polish fruit beverage.

 

 

Opening Day BBQ

It has become tradition at The Phia Group to celebrate Opening Day! We invite all Phia employees to dress up in their favorite sports team gear. As you can see, we have a heavy variety of team spirit here at The Phia Group. Some New York Yankees fans, Cleveland Indians fans, and of course, Boston Red Sox fans. Towards the end of the day, the Phia Family comes together outside of our office to celebrate with hotdogs, cold beverages, and great conversations.

 

 

Betting on the Bruins!

The Phia Family suited up in their finest Bruins gear (with the exception of a few Phians) to show their pride and support as the Bruins entered the Stanley Cup Final, in an attempt to win their 7th Stanley Cup. Although the Bruins fell a bit short, they still made it to the final round, which is a victory in itself.

 


 

Job Opportunities:

• Marketing & Accounts Coordinator

• Health Benefit Plan Drafter

• Health Benefits - Case Investigator I

• Attorney 1

• IT Intern

• PACE Intake Client Coordinator

• Health Benefit Plan Attorney I

• Client Intake Specialist

• Senior Claims Specialist II, Provider Relations

 

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

 

Promotions

• Francesca Russo has been promoted from Claim Recovery Specialist III to Claim Recovery Specialist IV

• Colleen Ahern has been promoted from Claim Recovery Specialist III to Sr. Claim Recovery Specialist

• Nicole Russo has been promoted from Case Investigator to Claim Recovery Specialist III

• Brittany Grueter has been promoted from Case Investigator to Claim Recovery Specialist III
 

New Hires

• Nasim Hassan was hired as an Intake Specialist

• David Ostrowsky was hired as a Plan Drafter

• Denise Swienc was hired as a Customer Care Representative

• Darlene Zarella was hired as a Claim Specialist II

• Kelly Gaunya was hired as an Subrogation Recovery Intern

• Erin Daley was hired as a Customer Care Representative

• Kaitlyn Lucier was hired as a Customer Care Representative

• Caelin McDonald was hired as an HR Intern

• Matthew Williams was hired as a Sr. Subrogation Attorney

• Jackie Andrews was hired as a Provider Relations Concierge

• Dylan Fry was hired as a Marketing & CAM Intern

• Bryan Dunton was hired as a Plan Drafter

• Krista Belanger was hired as a Plan Drafter

• Brenna Jackson was hired as a Legal Assistant

• Donna Harman was hired as a Overpayments Assistant

• Kevin Brady was hired as an Attorney I



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info@phiagroup.com
781-535-5600

Tales From the Plan: Episode 3 – Direct & To The Point!

In this episode of Empowering Plans – Tales from the Plan, The Phia Group’s VP of Legal Recovery Services discusses his experiences before and after becoming a happy participant in Direct Primary Care.  If you are one of the many people who’ve heard about “DPC” but still wonder how it will be received by the plan participants, tune in.

Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)


The Conscience Rule’s Effective Date is Delayed

 

By: Erin M. Hussey, Esq.

On May 21, 2019, Health and Human Services (“HHS”) published the Final Conscience Rule with an effective date of July 22, 2019, which allows the denial of certain health care services for religious reasons. This rule protects providers, individuals, and other health care entities from having to provide, pay, or refer services such as abortion, sterilization, or assisted suicide. The rule also protects those providers, individuals, and other health care entities from discrimination on the basis of their exercise of conscience in HHS-funded programs. The intent of this rule is to protect religious and moral objections from having to conduct or pay for these services.

This rule also details compliance obligations such as non-retaliation requirements. The Director of HHS’s Office of Civil Rights (“OCR”), Roger Severino, stated the following on that matter:

“This rule ensures that healthcare entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life. Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it’s the law.”

Following the publication of the Final Conscience Rule, many lawsuits were filed, including one brought by 23 Democratic states and one brought by the city of San Francisco, and both of those lawsuits essentially argue that the Final Conscience Rule is unconstitutional. As a result of those lawsuits, HHS has now delayed the effective date of the rule until November 22, 2019. With regards to the delayed effective date, the city attorney of San Francisco, Dennis J. Herrera, stated the following:

“We have won this battle – and it was an important one – but the fight is not over. The Trump administration is trying to systematically limit access to critical medical care for women, the LGBTQ community, and other vulnerable patients. We're not going to let that happen. We will continue to stand up for what's right. Hospitals are no place to put personal beliefs above patient care. Refusing treatment to vulnerable patients should not leave anyone with a clear conscience.”

We will be watching to see if the Final Conscience Rule goes into effect on November 22, 2019. This final rule coupled with the proposed rule on Section 1557, which was discussed in our previous blog, will have a major impact on different classes of vulnerable patients.

For more information on the Final Conscience Rule, please see HHS’s fact sheet found here: https://www.hhs.gov/sites/default/files/final-conscience-rule-factsheet.pdf.


Tales From the Plan: Episode 2 – Mrs Peck, It’s Cancer…

In this meaningful episode, Ron Peck tells us about his family’s battle against cancer, and lessons we can all learn from their experience.  Health benefits play a role in our health and survival. You can’t afford to miss this one.

Click here to check out the podcast!  (Make sure you subscribe to our YouTube and iTunes Channels!)


The Stacks - 3rd Quarter 2019

The Lien, Mean, Subrogation Machine

By: Maribel Echeverry McLaughlin, Esq

When you think of personal injury attorneys, you may imagine men in trench coats with cheesy tag lines with inflated promises, and commercials with ambulances blaring in the background.  Fortunately, I do not like trench coats, my tag lines are only sometimes cheesy, and ambulances terrify me.  

While attending law school, I worked for an attorney who became a state legislator, which meant I was forced to learn the ins and outs of running a practice in a very short period of time.  That experience ultimately left a bad taste in my mouth for opening my own firm.  Eventually, after graduating law school, I started my career as a junior associate in the personal injury firm down the street and became the partner’s main resource for research… and coffee.  

Working there opened my eyes to new experiences, such as the opportunity to practice law with a team of partners and senior associates.  We met once a week and strategized on how to win the most amount of money for our clients and, obviously, for the firm.  Sometimes those two goals conflicted with each other and we would work to find a resolution that would make sense for all parties involved.  

Interestingly enough, that typically meant negotiating with healthcare providers and health insurance plans.  In my tenure with this firm, I may have come across at least five (5) liens from private self-funded benefit plans.  After much negotiation and push back from the plans, each of them were resolved.  But it was not until I left that world that I realized how little personal injury attorneys actually know about the Employment Retirement Income Security Act (ERISA), self-funded health plans, and how they function in our world.  

Overview of the Law:
In 1990, the United State Supreme Court ruled in FMC Corp. v. Holliday,1 that state law will not prevent a private self-funded plan governed under ERISA from obtaining reimbursement. Additionally, the Court ruled that any state law that is contrary to ERISA would be preempted if the Plan’s language so provides or there is a clear contradiction to the federal law.

For years, this law went unchallenged until 2006, when Mr. and Mrs. Sereboff were involved in a motor vehicle accident, and the Mid Atlantic Medical Services Employee Health Plan paid related claims in the amount of $74,869.37.  

The Sereboff’s eventually settled their personal injury claim for $750,000.00 and did not reimburse the self-funded Plan.  The Plan eventually filed suit in the U.S. District Court for the District of Maryland, claiming a right to collect from the Sereboffs under § 502(a)(3) of ERISA.  

The Court ruled in Sereboff v. Mid Atlantic Medical Services2 that the federal courts have subject matter jurisdiction over actions where an ERISA-covered Plan seeks equitable relief.  The Court further ruled that if an ERISA-covered Plan has paid medical benefits arising from an act or omission of a third-party for which a plan participant obtains a settled or jury award, the Plan has a right to right to enforce the terms of the Plan Document pursuant to ERISA 502(a)(3), for equitable relief.

Shortly after, the Supreme Court held again in US Airways, Inc. v. McCutchen3, that the terms of an ERISA-covered Plan would be enforced as written, despite any contrary state law or equitable principle.  

This was a landmark decision as it clarified that the “common fund” and “made-whole” doctrines could be disclaimed by an ERISA Plan in their Plan Document language.  Whether adopted by state statute or relying on common law, neither of these doctrines can be used to defeat the Plan’s right of full reimbursement as long as there is clear language in the Plan Document disclaiming the application of these principles.

Most recently, the Court decided in Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan4, when a participant in an ERISA plan dissipates a third-party settlement on non-traceable items, the plan fiduciary may not bring suit to attach the participant's separate assets5.  In other words, the Plan is only entitled to “their” money, but if it cannot be traced in an asset that was paid for with that money, then the Plan cannot sue for the member’s general assets.  

Decisions to Settle and Negotiate Liens by Personal Injury Attorneys:
While working for the trench coats, I realized that large insurance carriers, such as Blue Cross, United, etc., were willing to settle without much work and negotiation.  At that time, it was easier to settle those liens than trying to work out a balance with a provider and proved to be more financially sound for the member.  

After negotiating with many private self-funded Plans, I realized they were, and still are, the most difficult to negotiate.  Attorneys will advocate zealously for their clients, whether they are victims of a horrific car accident case, or for the Plans themselves.

I received a letter not too long ago, from a lien resolution company in California, that was fifteen pages long, filled with arguments for the Plan to reduce their lien. Interestingly enough, after doing a quick internet search, it happens to be a string of arguments that many plaintiff attorneys are making to work through the private self-funded Plans governed by ERISA.  

Some of these arguments are easy to argue away, such as the common fund and made-whole arguments, especially if they are disclaimed in the Plan’s language.  

The attorney from the lien resolution company was representing a member and their attorney, for reimbursement and subrogation claims.  He sent me exactly what the member’s attorney had requested for a reimbursement, and interestingly enough, the Plan had previously refused to reduce their interest.  He made many arguments throughout those 15 pages and frankly only two stuck out to me.

He titled one “Deficiencies in the Plan Documentation”6; in which he alleged that the Plan administrator must properly disclose any reimbursement provision to Plan beneficiaries in the Plan document.

He opined that the Ninth Circuit, 29 C.F.R. 2520.102-2(b) requires that “(1) the description of summary of [a] restrictive provision must be placed in close conjunction with the description or summary of benefits, or (2) the pages on which the restrictive provision is described must be noted adjacent to the benefit description.”7 

The Court ruled that a reasonable Plan participant should not have to read every provision of a Plan’s documentation in order to ensure they have read every restrictive provision.8  The Court invalidated an inconspicuously-placed provision where the limitations for third party liability and out-of-pocket maximums were separated from the Plan’s description of benefits by multiple unrelated plan provisions, without cross-references or indexing.  

Our client’s Plan had the reimbursement provision entirely isolated from other provisions of the Plan’s documentation, and as such, would be invalidated by the Ninth Circuit.

The second argument cited was titled “Out of Pocket Maximum.”9 Here, he alleged that the Plan Document provided that individual beneficiaries would not pay more than a specific amount toward medical expenses.  He explained that the “Out of Pocket Maximum” should be a defined term, but in this document, it was not.  He also pointed out that the Plan Document does not define the terms “reimbursement”, “subrogation”, “lien” or other terms relevant to the third-party provision.10

As a former plaintiff’s attorney, I can understand and appreciate the zealous advocacy that this attorney was providing to his client.  It is difficult to balance all the interests especially when the common understanding is that the insurance companies have an abundance of money and that this lien interest would not break the bank.  

In reality, after explaining the concept of self-funding and paying claims out of the pool of money for all members that pay their premiums, attorneys tend to appreciate the advocacy we provide on behalf of these Plans.  These are not big bad insurance companies, as many people perceive; these are usually smaller companies, with the hope of keeping the risk low, and claims paid.  The opportunity for reimbursement for third party claims keeps the premiums low for the members, a concept that eventually attorneys or members understand completely.  

After reviewing these arguments with other attorneys in our office, we agreed that we should amend our major medical template to include these definitions and add references to certain places in our Flagship Plan document, in order to avoid these sorts of arguments from other attorneys in the future.

Specialists in plan document drafting and subrogation attorneys will be able to review your plan document to ensure we address all of the arguments to meet the needs of self-funded groups and their members.
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  1FMC Corp. v. Holliday, 498 U.S. 52 (1990)
  2Sereboff v. Mid Atlantic Medical Services, 547 U.S. 356 (2006)
  3US Airways, Inc. v. McCutchen, et al., 133 S.Ct. 1537 (2013)
  4Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 135 S.Ct. 651 (2016),
  5Id. at 655
  6John J. Rice, Esq, LTR #3 to Phia - Clariza (2018)
  7Spinedex Physical Therapy USA Inc. v. United Healthcare of Arizona, Inc. (9th Cir. 2014) 770 F.3d 1282, 1295
  8Id. at 1296.
  9John J. Rice, Esq, LTR #3 to Phia - Clariza (2018)
  10Id.

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Transparency – A Clear and Almost-Present Danger?

By: Ron E. Peck, Esq

Transparency in healthcare, and pricing of care, has been a hot topic – especially for those in our industry – for quite some time.  That flame has been fed recently by an increase in regulatory and legislative attention.  About one year ago, a bipartisan group of Senators unveiled their intention to launch a healthcare price and quality information transparency initiative, and the feedback has been all over the map.

I recently published a blog post regarding failed attempts at transparency in retail.  The two examples I shared therein I’ve also described below.  The response I received was passionate – from support, to opposition; it seems as if everyone feels “something” when it comes to “transparency.”  Before you read any further, let me state clearly and unequivocally that I am a staunch supporter of transparency – as a concept, as well as a tool to be used in our never-ending quest to minimize costs while maximizing benefits in health coverage and care.  Like so many other useful tools, however, transparency in overabundance or without other key ingredients will not only fail to move the needle (as it relates to the cost of health care) but may result in an increase in spending.

To get you up to speed, the examples of transparency (gone wrong) that I love to share are as follows –

Exhibit A: JC Penny’s.  Recall in 2011, when JC Penny’s made what most experts have deemed a catastrophic, strategic mistake, regarding its pricing strategy.  What horrific miscalculation did the retail giant make?  It replaced “sales” (a/k/a “discount”) and “coupons” with everyday low prices.  JC Penny’s told consumers: “Hey!  We aren’t going to bamboozle you by inflating prices, and then throwing arbitrary discounts at you.  Instead, we’ll offer you fair prices without any games.”  This was one example where transparency failed miserably.

Exhibit B: Payless.  If you want to buy some sneakers from Payless, you’d better do it soon.  Payless ShoeSource, Inc. is closing for good.  I’ve never shopped at Payless myself, but they hold a special place in my heart by virtue of something they did in November of 2018.  Yes indeed; it was only a few months ago that they supported my theory that transparency without quality awareness is not only useless, but potentially dangerous.  Payless opened a fake luxury store, dubbed “Palessi.”  At this “boutique,” they displayed shoes (for which they normally charge $20 at their Payless stores), with price tags that ranged up to $600+ (a 1,800% markup).  Shoppers saw the higher prices and assumed that – if it costs more, it must be better.

Another example of transparency that not only fails to reduce spending, but increases it, is also tethered to healthcare.  Unlike many other expenses about which we industry members are dealing, (expenses for which the lion’s share of the cost is borne by the benefit plan and as such, the patient has no “skin in the game”), one example of healthcare costs for which plan participants are fully responsible to pay is over the counter pain medication.  Enter any retail pharmacy and you’ll see brand name medication, and identical store brand drugs, sharing shelf space.  The store brand is clearly marked with a lower price than the brand name drug – who’s price is also clearly labeled.  Additionally, both medications list the ingredients on the package; identical ingredients and percentages.  This is the ultimate cross-roads between healthcare, patient skin in the game, and transparency.  So, of course people buy the store brand drug – it’s the same drug, costs less, and the patient is financially responsible to pay the price.  Transparency works, right?  Wrong!  People overwhelmingly purchase the branded drug.

I’ve said it before, and I’ll say it again – people want the most expensive option.  People don’t want to pay for the most expensive option, but they want to have the most expensive option.

Look no further than the credit crisis bankrupting so many Americans.  Credit cards made it so easy for people to buy more than they could afford, because they made it “feel” like it was someone else’s money.

Sound familiar?

People inherently want the most expensive option, because they are convinced price is an indicator of quality.  Additionally, luxury purchases are a status symbol.

So we (human beings) want the best.  We assume the most expensive option must be the best option – ever hear someone say, “you get what you pay for?”  Additionally, we want other people to think we have the best (a/k/a the most expensive) stuff as well.  The only roadblock is that we don’t always have enough money with which to buy the best (most expensive) stuff.  Drat.

But, when someone gives me a magical “card” and that “card” grants me access to deeper pockets than my own, I can now use that “card” to buy the best (a/k/a most expensive) stuff.  The fact that I will tomorrow be asked to pay for that “stuff” later (either in the form of credit card payments … or … [assuming my metaphor didn’t go over your head] insurance premiums) won’t stop me from running up an unaffordable bill today.

Transparency did nothing to stop people from getting themselves into credit card debt.  Transparency will do nothing to curb people’s health care spending, and I actually foresee it making things worse.  Consider the proposals to have drug prices on TV advertisements.  I’m watching the Patriots beat another opponent, when a commercial for Viagra pops up; (pun intended).  The commercial ends by telling me the cost of the drug is $400.  Next, a commercial for Cialis appears, and tells me that drug costs $600.  Well – don’t I and my spouse deserve the best?  Cialis it is!

I’d like to say that I am the first to spot these phenomena, but I’m not.  In 2016, the Journal of the American Medical Association published a study1 that supports my assertion that transparency on its own doesn’t lead to savings.  In this study, two employers offered web-based tools to their employee plan participants, providing them with “transparent” healthcare prices.  It empowered these participants to compare prices and “shop around” for their care.  The result?  The tools were rarely accessed, despite the introduction of high deductibles.  In fact, as a side note, the high deductibles caused more participants to seek more costly care, in an effort to burn through the out of pocket maximum as quickly as possible.  Additionally, for the reasons already discussed earlier, researchers discovered that the participants with access to pricing ended up picking the more expensive options, more often than participants without access to pricing.

This report supports my theory above that patients always apply the type of rational behavior upon which traditional economic theory is based, especially when they are shopping for health care.  Rational behavior and economics would anticipate that a consumer will buy a less costly option unless the more expensive option includes additional features worth the added expense to the consumer.  That attitude, however, fails to take into account people’s need to “be seen” as affluent (and flaunt non-existent wealth), as well as their unfounded belief that if something costs more it must be better, and is worth the added expense.  Consider, for instance, the blind taste tests where a person is given two glasses of wine, and they are told one is a $100 glass of wine, and the other is a $10 glass of wine.  Without fail, the drinker claims the more expensive wine is better tasting – even though (you guessed it) the wine in the glasses is the same wine!

Looking at the impact of transparency on a broader scale, Professor David De Cremer of Cambridge University’s Judge Business School, published a fascinating article about transparency, and when it backfires.2  In it, he lists four negative side effects of transparency.  He discusses how it: creates a culture of blame (people become hyper-focused on what they are seeing and reacting to it, rather than identify bigger picture issues, causes for those issues, and solutions); increases distrust (those whose work is constantly under the microscope feel micro-managed and unable to take risks); increases cheating (those who are constantly being watched begin to look for, and take advantage of, any opportunity to game the system when the albeit rare opportunity arises); and sparks resistance (people refuse to do any work that will be hyper-examined, protesting the lack of faith).

Finally, let’s not lose sight of the fact that not everyone agrees on what transparency in healthcare even is.  Consider the Federation of American Hospitals which wrote to Congress that: “ …the healthcare price transparency initiative should focus on sharing out-of-pocket costs. Patients undergoing the same procedure could end up paying different amounts based on their health plan. Therefore, out-of-pocket cost information is more valuable to consumers … effective price transparency should involve the release of information that is clear, accessible, and actionable so that consumers easily can determine the cost of their premiums, deductibles, copayments, and non-covered services (out-of-pocket costs), prior to purchasing health insurance coverage as well as receiving medical services.”  Yikes.

Dr. Niran S. Al-Agba, MD posted on the MedPage Today Professional “KevinMD Blog”3 – “Comprehensive transparency is only relevant if packaged in a reliable comparative context.  Information regarding cost, value, and effectiveness should be readily accessible to patients enabling them to make meaningful comparisons across providers and specialists. However, choices must be incentivized properly, so they are not only empowered but also motivated to use the information to make informed choices.”  I totally agree.  Unless and until reliable quality measurements are included in the transparency discussion, and that information is delivered in such a way that the consumer will understand and appreciate that price has no relationship with quality, I fear “price transparency” on its own is not only a step too short, but potentially a step backwards, in Palessi boots.
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1https://jamanetwork.com/journals/jama/fullarticle/2518264
2https://hbr.org/2016/07/when-transparency-backfires-and-how-to-prevent-it
3https://www.kevinmd.com/blog/2017/03/problem-price-transparency.html

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Seasons of Change: How to Successfully Implement Evolving Healthcare Trends

By: Jennifer M. McCormick, Esq.

Have you ever wondered whether you paid more for your flight than the person next to you on the airplane? What about whether you could be doing more (or less) to save money and time?  I’m confident we all frequently ponder what we can do differently to save.

Whether big or small savings, we’re constantly looking for ways save money in all areas of our life.  Dinner budgets, car insurance, clothes, general spending - you name it and surely, we have contemplated whether we can reduce that expense.  But we also try to balance cost against convenience, expecting to save money and time.  For example, we can click a couple of buttons on our phone and groceries appear at our doorstep two hours later, saving us both money and time.

Can we say the same for our self-funded plan documents? Regulatory changes and medical technologies are continually advancing.  Why aren’t we applying these new technologies, endeavoring to save money and time, to our self-funded plans? It’s probably because we don’t know how to get started.

Hopefully this discussion will help provide a framework to allow employers and plans to implement new medical technologies and other time and cost savers! We will break down some steps to help simplify implementation of new regulations and technologies.

Step 1: Ask Questions!

When approached about a new idea ask this question - what problem are you trying to solve?  Not only is it key to understand what problem the new idea, new regulation, or new technology would be solving, but it is imperative to first determine whether it is a problem that needs to be solved!

When it comes to savings, time is money too. As a result, the first part of an analysis should be ensuring that the full scope of the problem requiring resolution is realized.  What is ‘costing’ the most … time, money, or both?

After understanding the extent of the problem, review whether the idea would mitigate or eliminate the problem.  For example, assume Fictitious Company A has the proven and medically (and dentally) backed solution to effectively reduce the cost of elective cosmetic dental surgeries by 50% for a low monthly cost to the plan.  An employer might think that would be fantastic, but after reviewing a copy of the plan document and summary plan description realized that elective cosmetic dental surgeries are excluded.  In that example, even though real savings could exist, the solution does not solve a problem for the employer (i.e. with an exclusion the employer pays 0% for elective cosmetic dental surgeries).

Assume instead that the employer was hoping to remove the exclusion for elective cosmetic dental surgeries.  Employer wants to offer this benefit to participants of the self-funded plan it sponsors but wants to control costs.  The services offered by Fictitious Company A might be a perfect fit! Here, the idea solves a problem for the employer.

The next set of questions should aim to proactively troubleshoot barriers to implementation of the idea. How can hurdles be eliminated and what alternatives exist to address the concerns? Is there a way to take the hurdle and create an opportunity?

For example, many states are implementing paid family leave laws.  For employers, the problem that needs to be solved here is investigating what must be done to comply, how must it be done, and how can it be financed.  In addition to understanding what state regulations would apply, employers may wish to review their current plan materials.  Does the employer currently have a policy in place that addresses the regulations? If not, can you make updates to existing benefits? Would this be a good opportunity to investigate whether establishing a self-funded benefit might solve the problem, while offering employer convenience and cost savings?

Assuming the answer is yes, the next step would be to investigate any impediments.

Step 2: Investigate Impediments

It’s important to investigate impediments to an employer’s or plan’s ability to successfully implement a valuable idea.  This requires understanding what agreements should be in place, certain legal hurdles that could prevent taking further steps, and whether the claims systems would need changes to address the new technology or solution.

For example, assume a self-funded plan has many members seeking various chronic pain treatments.  A progressive employer, looking to offer an alternative to high cost treatments, investigates medical cannabis.  Coverage of this benefit would save the plan money. In this case, the employer is located in a state that has legalized medical cannabis. The employer decides to investigate modification of the plan design.  Upon investigation, the employer uncovers that the addition of this benefit would be problematic.  While legal at the state level, it is still considered a schedule I drug under federal law.  As a result, it may not be prescribed for medical use (See Section II ‘General Requirements’ of the Practitioner’s Manual from documentation issued by the United States Department of Justice, Drug Enforcement Agency, Office of Diversion Control for additional information). With this discovery, the employer decides that while coverage may be beneficial, medical cannabis is not a prudent addition to the plan terms.

Alternatively, let’s assume that instead of medical cannabis the benefit that the employer wanted to cover was Chronic Pain Treatment B, a brand-new cutting-edge medical technology.  Upon investigation, the employer identifies that there are no legal hurdles; however, it determines that this new medical technology is considered investigational and experimental.  Not only does the plan have a current exclusion for items considered investigational and experimental, but an applicable stop loss policy would not provide reimbursement for related claims.

Now, assume the same facts as above, except the medical technology in this instance is not considered investigational or experimental. The employer would seek to determine whether any executed agreements would impact implementation.  Would a new agreement need to be executed, would that agreement conflict with any existing agreements (i.e. stop loss policy, network agreement, PBM agreement, etc.)? Assuming no conflicts, the employer could implement the new solution or technology.

Step 3: Implementation

A solution free of impediments has been identified to solve a problem.  Does implementation of the solution require a plan update? If so, does the solution create a new benefit or reduce a current benefit? Will the solution be implemented mid-year via an amendment or at plan renewal? Will other documents need to be updated as well, like the Summary of Benefits and Coverage (SBC)? Are there concerns about the Affordable Care Act (ACA) or the Employee Retirement Income Security Act (ERISA) timelines or rules?

For example, assume an employer wants to implement New Benefit C. This new (FDA-approved) technology will save patients and the plan both time and money. The new technology, however, is so new that claims systems have not been updated to accommodate this type of service.  New Benefit C is offered in collaboration with a common medical treatment, but it is unclear how coding for New Benefit C would be handled. In this example, the administrator would need to be aware of how this would be identified to ensure correct processing.  Simple adoption (or modification or removal) of plan language may not be enough; a review of how (or whether) a claim may be processed is also necessary.

Instead, assume an employer wants to offer more expansive leave of absence provisions for its employees.  The employer modifies the employee handbook and has a staff meeting to address the new provisions.  The employer, however, fails to address this policy change in the relevant plan materials, or with the stop loss carrier.  As a result, implementation of the benefit may inadvertently create a coverage gap among stop loss coverage, the plan document, and the employee handbook.  When implementing a new benefit, it is imperative to analyze the impact on other entities.

Step 4: Engagement

Engagement is going to help make the idea or solution successful.  At this point, a problem was identified, a solution was envisioned, and implementation was completed.  How can the employer or plan ensure the idea or solution is being utilized, since utilization is the key to success (i.e. savings)?

For example, assume an employer opted to add a new plan option to the current plan design at renewal.  This new plan option includes direct primary care but will require participants to affirmatively elect that option.  This plan option should not only be enticing for participants, but it has the opportunity to save the plan money.  Since the employer’s participants are unaware of direct primary care the employer elects to hold an educational meeting.  This session educates participants about direct primary care and what new and exciting benefits are be available under this new plan option.

In addition to educational meetings to inform participants of new benefits, employers can encourage engagement by financially incentivizing programs. For example, employers can reduce copays to encourage utilization of the new idea or solution.

Employers can also seek ways to encourage engagement outside of the plan design.  For example, why not incentivize employees to ask questions about health benefit options available to them?  An employer could create a program offering a reward if an employee voluntarily opted to chat with human resources about a planned treatment.

A combination of education, incentives (or penalties), and employee rewards can help employers ensure engagement in programs that are designed to protect participants and save the plan money.

Don’t let new advances pass by!  Keep the plan in check and on trend with the latest and greatest healthcare innovations without sacrificing compliance. Follow this simple framework to ensure new ideas are successfully implemented so the plan, employer and members stay happy - and realize savings!

 


Network Contract Drafting: You’re Doin’ It Wrong

By: Jon Jablon, Esq.

Our consulting team recent came across a network agreement that had the interesting nuance of indicating that the provider would bill amounts that were in line with market standards.

Language like that is a killer. There’s no way around it. It’s so ambiguous as to be all but useless when trying to decide which amounts are properly billed. What exactly are the appropriate market standards? Who is empowered to decide that? When the payor and medical provider inevitably have wildly different opinions on that, how can they possibly resolve the matter when the contract language is so infuriatingly unhelpful?

In this example, the provider had unbundled certain charges, and argued that the market did in fact bear that billing methodology, since most private payors such as this one accepted it – and therefore it was proper pursuant to the contract. The plan, however, contended that a large portion of the provider’s business (and a large part of the total local market) was made up of Medicare claims, and CMS guidelines do not bear that type of unbundling – and therefore it was not proper pursuant to the contract.

Due to this tragically-unclear contractual provision, the payor and provider have been forced to either compromise (which neither wants to do), or take it to court (which neither wants to do, either). It’s going to come down to which option the parties hate less.

Another tragic aspect of this story is its moral. The moral of the story should be to make sure you read your contracts and have them reviewed by an expert prior to signing – but as many of us have found out the hard way, it’s not always possible to view a copy of the provider-facing network agreement. If the payor agreement that you sign talks about billing standards, make sure they’re clear and unambiguous; if it doesn’t, try asking to see the provider agreement. The worst anyone can say is no.

Food for thought: if you’re being asked to sign your name to terms that are clearly ambiguous, or terms the other party won’t even show you, maybe that vendor is not the right fit for your business…