Phia Group Media

rss

Phia Group Media


New Guidance on HIPAA – Using PHI to Contact Recovered COVID-19 Patients Regarding Plasma Donation

On September 21, 2020

By: Andrew Silverio, Esq.

Recently, the Department of Health and Human Services released updated guidance outlining some permissible uses of Protected Health Information (PHI) under HIPAA in regard to recovered COVID-19 patients (available at www.hhs.gov/sites/default/files/guidance-on-hipaa-and-contacting-former-covid-19-patients-about-plasma-donation.pdf).  This guidance, which applies to health care providers, health plans, and their business associates, is an expansion of previous guidance which applied only to health care providers.

In essence, the guidance provides that these entities can use PHI to identify and contact individuals who have recovered from COVID-19 in order to inform them about how to donate their plasma, which will contain antibodies to SARS-CoV-2 which are useful in potentially treating COVID-19 patients. This activity has been classified as falling within the category of “health care operations,” and thus PHI can be used for this purpose without an individual’s authorization. 

HHS outlines that these activities constitute “health care operations” in that “facilitating the supply of donated plasma would be expected to improve the covered health care provider’s or health plan’s ability to conduct case management for patients or beneficiaries that have or may become infected with COVID-19.”  In regard to a health plan (as opposed to a particular provider who may use collected plasma itself to treat other patients), this justification’s connection to the “health care operations” of the specific covered entity seems tenuous.  It is difficult to see how, for a health plan as opposed to a provider, an interest in increasing the availability of antibody-containing plasma generally actually furthers the “health care operations” goals of the particular plan.  However, the public interest rationale here is crystal clear.

The guidance does come with an important caveat – the use of PHI for this purpose is only permitted to the extent that the outreach does not constitute marketing, which HHS outlines as “a communication about a product or service that encourages the recipient of the communication to purchase or use the product or service.”  This should not be an issue for plans, but providers likely have to walk a fine line when they provide the services in question.

An Overview of the Recent New York Federal Court Decision and its Potential Impact Moving Forward

On September 9, 2020

By: Kevin Brady, Esq.

In April of this year, following the passage of the Families First Coronavirus Response Act (FFCRA), the State of New York sued the Department of Labor (DOL), claiming that several provisions of the FFCRA exceeded the DOL’s authority under the statute.

On August 3rd, the United States District Court of the Southern District of New York issued an opinion, siding with the State of New York and invalidating several provisions of the FFCRA. Specifically, the court invalidated the following regulations:

  1. The “work-availability” requirement

Under the FFCRA regulations, individuals are not eligible for Emergency Family Medical Leave or Emergency Paid Leave if their employer does not actually have work for the individual to do. The court concluded that the DOL failed to properly explain this additional requirement, and invalidated the regulation.

  1. Employer approval of intermittent leave

Under the FFCRA regulations, employees are required to have approval from their employer in order to take leave under the FFCRA intermittently. The court opined that this was not permissible and vacated the regulation.

  1. Requirement to provide documentation of leave in advance

Employees are required to provide documentation regarding the reason for leave and the requested duration of leave, prior to taking leave under the FFCRA. The court reasoned that this regulation is inconsistent with the statute and struck the regulation down.

  1. The DOL’s definition of “health care provider”

Under the regulations, employers are permitted to exclude health care providers from the leave entitlements granted under the FFCRA. The DOL’s definition of the term “health care provider” is broad and can be interpreted to include individuals who are only tangentially related to actually providing health care. The court reasoned that the exclusion of leave entitlement for health care providers is intended to apply only to those individuals who are capable of providing healthcare services.

Potential Impact

While the court’s ruling may ultimately have a significant impact nationwide, it appears that (at least for the time being) the application of the ruling will be confined to employers in the state of New York, as the court did not specifically address whether the ruling would apply nationally. At this point, the ball is in the DOL’s court. If the DOL’s complies with the ruling, we are likely to see significant changes to the FFCRA regulations and guidance. These changes are important and may drastically increase the rights of employees looking to take leave. In the alternative, the DOL may appeal the ruling, in which case the impact may be in limbo for some time. In the meantime, employers should review their current policies and their administration of FFCRA, as well as keep their eye out for the DOL’s next steps to ensure compliance with the FFCRA leave provisions.

Plan Mirroring: What Does It Really Mean?

On August 26, 2020

By: Jon Jablon, Esq.
 

We hear a lot of chatter in the self-funded industry about “plan mirroring.” The idea is that a stop-loss carrier will adopt the same language as what is in the SPD, in effect “mirroring” the language, and that gets rid of what we at Phia like to call “hard gaps,” where the plan and carrier are working off different language, leading to situations where the plan must pay claims but the carrier may deny them. The point of mirroring the SPD’s language is so the plan never needs to worry about those kinds of gaps.
 

But there are other kinds of gaps, too. Gaps tend to arise when different entities are interpreting the same language, as well (we call those “soft gaps”) – and it is crucial to keep in mind that a policy that mirrors the plan’s terms is not the same as the carrier adopting the plan’s interpretation of those terms.
 

Let’s talk about an example. We have mentioned this particular situation numerous times; it’s not because we’re too lazy to think of new examples, but because it keeps on happening! The SPD excludes any benefits paid for services performed by a family member. A plan member has a great uncle who is a surgeon, and elects to have him perform the surgery partially because of the great price he has offered, and partially because he knows and trusts him. As far as the plan member is concerned, this is a win-win. The claim is sent to the health plan, and the Plan Administrator uses its discretion to determine that “family member” does not include someone as attenuated as a great uncle (since the Plan Administrator interprets that term “family member” to refer to the immediate family), so the plan pays the claim, and expects that the carrier will agree, since the policy “mirrors” the plan.
 

Well, you can guess what happens next.
 

The claim goes to the stop-loss carrier, and the carrier denies the claim because its interpretation of “family member” is broader than the Plan Administrator’s interpretation, indeed including great uncle within the class of “family members.” The carrier denies the claim. The plan is both confused and angry, and thus begins a protracted fight between the plan/TPA/broker and the stop-loss carrier, caused by the carrier’s overly-salesy and idealistic explanation to the plan, TPA, and broker what mirroring actually entails.
 

In short, plan mirroring entails using the same language, but it does not necessarily entail thinking the same things. The carrier adopted the same exclusion that the plan uses, but the carrier cannot control how the plan interprets that exclusion, nor can the plan be underwritten based on what interpretations of the plan language the Plan Administrator could conceivably make in the future. The carrier, after all, is not a psychic – and because of that, it is the carrier’s responsibility to make absolutely sure the health plan understands what “mirroring” really entails, and what it doesn’t entail. The concept of plan mirroring in a stop-loss policy is not quite as straightforward and magical as it seems. It is certainly useful to minimize the gaps in the language used, but it’s not a panacea.

This applies just as clearly, if not more so, in the level-funded arena, where level-funded plans expect to have their expenses capped based on a guarantee that the carrier will cover all their claims above the aggregate deductible. When there is a difference in interpretation that leads to a denial, the plan is left holding the bill, and often has no idea why – especially when level-funded plans are marketed essentially as programs that mimic fully-insured policies. The important difference is that in a fully-insured policy, the plan sponsor pays its monthly premium and there is no possibility of being on the hook for claims – whereas in a level-funded program, the plan sponsor can lose its expected reimbursement if the stop-loss carrier doesn’t agree with the Plan Administrator’s discretionary decision.


Plan mirroring provisions are sometimes marketed to make a stop-loss policy airtight for the plan, but don’t be fooled by the hype: there is always still the potential for a gap somewhere along the way. Make sure you read and understand your contracts and policies before you sign, and if possible, have them reviewed by an expert!

HEALS vs. HEROES

On August 24, 2020

By: Nick Bonds, Esq.
 

As the worldwide coronavirus crisis continues to grind on, impacting virtually every aspect of our lives, we have necessarily become familiar with the many pieces of legislation passed by Congress in its attempts to soften the blow to our country’s economic and healthcare systems. This has engendered a whole new can of alphabet soup: CARES, FFCRA, EFMLEA, EPSLA, PPP. Enacted late spring/early summer, these legislations have become staple pieces of the daily conversation in the arena of health benefits for employees. They’ve nearly begun to blend in with the furniture.
 

But as we are all keenly aware – these pieces of legislation were not designed to be permanent. Many of these temporary rules are set to expire by the end of 2020, with a number of the key components like the payroll protection program, already lapsing, many of us are looking back to Capitol Hill and wondering if and when more economic aid will be coming.
 

Democrats in the House of Representatives put together a follow-up aid package in May. Clocking in at roughly $3 trillion ($8 billion more, give or take, than its predecessor), the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act would echo much of the relief provided in the CARES Act. Direct stimulus checks to individuals, enhanced unemployment benefits, and in some ways would go even further by expanding the PPP and employee tax credits, expanding eviction protections, providing hazard pay to for essential workers, and allocating billions to assist schools and universities reopen safely.
 

Though the HEROES Act passed quickly in the House, the Republican-controlled Senate was reluctant to take up the legislation. Balking at the $3 trillion price tag, and perhaps holding out hope that the coronavirus would indeed recede in the warmer summer months and render further economic aid unnecessary, the Senate has finally put together its own approach to a new round of economic stimulus: the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act. Unveiled on July 27, the HEALS Act clocks in at a (relatively) svelte $1 trillion – putting a fairly clear number on just how far apart the two sides are in reaching a compromise.
 

The HEALS Act includes many of the provisions that proved so popular in the CARES Act: direct “economic impact” payments to individuals with money for dependents as well, enhanced (though significantly reduced) unemployment benefits, and expansions to the PPP and employee tax credit. The HEALS Act dodges some of the assistance provided under the HEROES Act: it is silent regarding eviction protections, provides less support for higher education institutions, and makes its aid to K-12 schools dependent upon their reopening. To Senate Republicans’ credit, the HEALS Act does address a number of things not touched on by either the FFCRA or the HEROES Acts. Namely, the HEALS Act provides $16 billion for coronavirus testing, introduces a potential “return to work” bonus for unemployed workers who secure new employment, and it contemplates a 5-year liability shield.


This last component, encapsulated within the SAFE TO WORK Act (a component of the HEALS Act), is likely of the greatest interest to employers. The bill is designed to shield businesses, schools, nonprofits, government agencies, and other organizations from coronavirus-related lawsuits, so long as they take “reasonable” efforts to follow public health guidelines and manage to avoid grossly negligent or intentional acts of misconduct.

Congress has yet to reach a deal on the next aid package, but there are many components on the table that could do a lot to help Americans through the next leg of this crisis, employees and employers alike. We’ll keep a weather eye on the legislation as it develops.

Returning to Work Safely and Smartly. Who Bears the Cost?

On August 13, 2020

By: Bryan M. Dunton

Earlier this year, the coronavirus swept through the country and became such a major concern that employers shut down their physical offices and moved their operations remote. Not long after, states began mandating shutdowns and shelter-in-place orders. The overarching theme focused on how to keep everyone safe.

Now, months later, states and employers have begun to relax those restrictions by reopening, albeit in phases. With that, employees have slowly been allowed to return to work in traditional office settings. Given that employers have an interest in the wellbeing of their employees, and would likely face significant business consequences in the event of an outbreak at their place of business, some employers have implemented mandatory return-to-work testing for those employees who come back to the physical office space. On the national level, we have seen this approach implemented in major sports leagues such as the NFL, NBA, and MLB. The idea is essentially to test everyone who enters the building, regardless of whether they are displaying symptoms or have had known exposure.

The expansion and implementation of mandatory return-to-work testing has led to an interesting issue for plan administrators; who bears the cost of covering these tests?

While the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) require health plans to cover the cost of testing for COVID-19, with no cost-share to the participants, during this declared emergency, many plans are asking if they must pay the cost of the employer-mandated return-to-work testing. Seeing as testing costs vary wildly from $20-$850 (or more) per test, and an overall estimated nationwide cost of $6-25 billion annually, we can certainly see why health plans are concerned.

Section 6001 of the FFCRA, as amended by section 3201 of the CARES Act stipulates that in vitro diagnostic testing for COVID-19 must be covered, with no cost-share to participants. Further, this mandate applies to most group health plans, including self-funded plans. The Centers for Disease Control (CDC) recommends testing for the following five populations of people:

  • Individuals with signs or symptoms consistent with COVID-19
  • Asymptomatic individuals with recent known or suspected exposure to control transmission
  • Asymptomatic individuals without known or suspected exposure for early identification in special settings
  • Individuals being tested to determine resolution of infection (i.e., ensuring someone is no longer infected)
  • Individuals being tested for purposes of public health surveillance for COVID-19

Most of these categories deal with either asymptomatic individual or someone who may have been exposed to the virus. The Department of Labor (DOL) issued additional guidance in late June 2020 to clarify that the FFCRA and CARES Act mandate to cover the cost of COVID-19 testing only applies when the testing is medically appropriate. It further clarifies that testing “not primarily intended for individualized diagnoses or treatment of COVID-19” is not within the scope of section 6001.

So here we are. What should a plan do if an employer mandates return-to-work testing for its employees?

You might be surprised by this, but the answer is: it depends. Return-to-work testing is not typically ordered by an attending physician who deems the test medically appropriate for the patient. Rather, it is ordered by the employer, most likely for purpose of public health surveillance to help diagnose individuals in the workplace. This approach can ensure prompt and proper treatment to prevent creating a hot spot and spreading the virus. Some group health plans have opted to cover the return-to-work testing as a precautionary measure to help mitigate the costs of having to treat a larger pool of participants that may become infected with COVID-19.

Plans and employers should also consider any respective state mandates and obligations which may create additional circumstances where testing would be covered. As a final consideration, some mandates could also create a situation where an employer must cover certain testing even if it is not something where the cost can be passed on to the health plan.

Most self-funded group health plans are following the spirit of the law, and we recognize this is a difficult area to navigate as guidelines and mandates are evolving frequently while we all learn more about the virus. Here at the Phia Group, we welcome the opportunity to consult and help self-funded plans contain their costs and ensure the safety and well-being of their participants.

New Rules on Prescription Drug Importation Are Released – Or Are They?

On August 11, 2020

By: Andrew Silverio, Esq.

On July 24, 2020, the White House issued an “Executive Order on Increasing Drug Importation to Lower Prices for American Patients” as part of a handful of executive orders aimed at drug costs (available at https://www.whitehouse.gov/presidential-actions/executive-order-increasing-drug-importation-lower-prices-american-patients/).  At first glance, the order seems to take sweeping steps to facilitate the importation of prescription drugs, but does any of it really represent a departure from existing law?  The order specifically orders the Secretary of HHS to take action in three ways:

  1. Facilitate waivers to individuals against the prohibition on importation, “provided such importation poses no additional risk to public safety,” pursuant to section 804(j)(2) of the Federal Food, Drug, and Cosmetic Act (FDCA);
  2. Authorize the re-importation of insulin products upon a finding that doing so is required for emergency care; and
  3. Complete the rulemaking process started by the proposed rule (more information below) to allow importation of certain drugs from Canada.

As it relates to the first item, it’s clear that this does not represent any new law or authority.  Under section 804(j)(2) of the FDCA, “The Secretary may grant to individuals, by regulation or on a case-by-case basis, a waiver of the prohibition of importation of a prescription drug or device or class of prescription drugs or devices, under such conditions as the Secretary determines to be appropriate.”  This order is simply an instruction to utilize said authority, and it is not clear how or whether these waivers would differ from the existing FDA policy of enforcement discretion, which is quite broad and under which individuals are rarely prosecuted for importing prescription drugs for personal use.  The important caveat that the importation must pose “no additional risk to public safety” suggests that there may be no real change at all, as this is one of the biggest factors in the FDA’s existing policy of enforcement discretion, and the key element cited by the FDA and pharmacy stakeholders in pushing back against importation.

In regard to the second item, the specific inclusion of insulin is interesting, and perhaps represents the most significant element of this order.  The proposed rules outlined in 2019 by the FDA and HHS did not specifically include insulin (available at https://www.hhs.gov/about/news/2019/07/31/hhs-new-action-plan-foundation-safe-importation-certain-prescription-drugs.html), and the drug’s special storage and safety requirements are a barrier to its inclusion in existing avenues of importation.

While we’re on the topic of the proposed rule, the third item in the executive order is nothing more than an instruction to continue that rulemaking process.  So, is this order a dramatic step toward real federal action allowing drug importation, or just a token announcement that doesn’t really accomplish anything?  Unfortunately, it’s simply too early to tell, and we will have to wait and see what HHS does in response.  It is worth noting that when the proposed rule came out, it was met with harsh criticism from our northern neighbors, many of whom discussed potential action by the Canadian government to counter any such importation efforts in order to protect their own drug supply.  As such, action taken  by the United States in regard to Canadian drug importation won’t be the only factor in whether the practice ultimately becomes both legal and practical.

Texas Still Working On Mental Health Parity Rule Implementation

On August 3, 2020

By: Kelly Dempsey, Esq.
 

Texas House Bill 10 was passed in 2017. The House Bill 10 “Study of Mental Health Parity to Better Understand Consumer Experiences with Accessing Care” was published in August of 2018. On June 16, 2020, the Texas Department of Insurance (TDI) published an informal draft rule to implement House Bill 10. Before we dive into the requirements, you’re probably wondering why I’m writing about this topic. My motivation is to draw attention to these requirements as they impact self-funded non-ERISA plans.
 

There are four division to the Bill which are summarized here:

  • Division 1: Imposes mental health parity requirements that essentially mirror the federal requirements. The goal is a single unified standard for assessing parity.
  • Division 2: Imposes requirements to submit reporting to the state on utilization review outcomes. The TDI notes that this data will not always be evidence of a violation, but this information will help TDI further assess the need to investigate potential issues and monitor benchmarking and changes over time.
  • Division 3: Imposes requirements to analyze quantitative and non-quantitative treatment limitations for compliance with parity rules, and retain the analysis to make available to the state upon request. The goal is to have a standardized reporting format.
  • Division 4: Replaces the existing Autism mandate with the goal of harmonizing the Autism mandates with mental health parity. This clarifies that Autism Spectrum Disorder treatment is within the scope of mental health parity requirements.

So what does this all mean? A self-funded health plan that is following federal mental health parity rules shouldn’t have any new substantive parity requirements to take into consideration, but there may be new recordkeeping and reporting requirements on the horizon.

TDI held a stakeholder meeting on July 10, 2020. Significant concern from stakeholders was raised regarding the undue burden of the reporting requirements and a request for TDI to work with health plans further to refine the data reporting parameters. It was specifically noted that the reimbursement reporting requirement would create issues related to the confidentiality of reimbursement rates as well. Other concerns included the definitions in the statute straying from federal statutory definitions and the frustration with the limited time to respond to the informal draft rule in light of the COVID-19 pandemic and already strained resources. In light of the feedback, the TDI has much to consider when revising and finalizing House Bill 10.

As one may glean from the issuances of the “informal draft rule,” the TDI is still early in the process of formalizing this rule so we can certainly expect some changes before a final rule is issued and implemented.  


The various pieces of this legislation and the recording of the stakeholder meeting can be found here: https://www.tdi.texas.gov/health/hb10.html.

A Brief Anecdote on Testing for COVID-19

On July 29, 2020

By: Kevin Brady, Esq.
 

This week, a close friend reached out and asked for my help. As an attorney, this is not all that uncommon. I am often asked to read apartment leases, organize estate plans, and opine on the merits of a potential tort claim. This request however, was a bit different. This time, my friend asked for help in getting tested for COVID-19.
 

As a bit of background, my friend lives and works in Chicago, Illinois. She has health insurance through her employer and she has outstanding benefits. She had “known exposure” to the virus last weekend and wanted to take a test to confirm whether she had contracted the virus as well. Now you may be asking, why would she ask you? What do you know about it? And the truth is, I didn’t know much about it, but I certainly do now. I know that there are a number of options for testing, but each of those options has a myriad of issues that go along with it.
 

Testing Options

  1. FDA Approved at-home Test Kit

First, we looked into at-home tests. This option is widely available and can provide results in a short amount of time. Although this option was certainly appealing, my friend was looking for immediate answers and feared that the time it took to get the kit shipped to her, shipped back to the lab, and to process the results would be just too much time, and therefore not worth it.
 

  1. Free Testing through the City of Chicago

The City of Chicago offers free tests at a number of locations throughout the city. While the process was simple, the closest testing location was 6 miles away. For a person without a vehicle, this option wasn’t really feasible.
 

  1. Urgent Care Walk-Up Testing

A local urgent care offers testing on a “first come first served” basis. The clinic advised arriving at least an hour early to ensure a spot in line before the clinic reached its daily capacity. The average wait time at the clinic is between 3 and 5 hours depending on when you arrive and secure your place in line. My friend arrived at 6:30 am, and was tested at approximately 10:00 o’clock.
 

  1. Emergency Room Testing

My friend did not even consider this option for testing. While it may have guaranteed a test, she did not want to risk exposing others and did not want to risk exposing herself if she did not already have it. Further, she had no idea about the potential costs associated with an ER test.
 

Having helped my friend through this difficult experience, I finally have perspective on what it's actually like to be on the ground, seeking a test in our system. I was struck by the number of barriers between my friend and getting a test. Whether it was the 4-hour urgent care wait, the 12-mile round trip for a free test, or even just the fear of the unknown in an ER, the system provided reason after reason to give up on the test, and go about her life.

Thankfully, my friend was persistent and ultimately got the test (she tested negative for COVID). I fear that the same cannot be said for everyone. I wanted to share this anecdote to provide a limited perspective on what it is like to seek a test and how the barriers currently in place may be leading to the spread of the virus. Stay safe, stay healthy, and if you have been exposed or experience symptoms, look past the hurdles and get tested!

Simple Negotiations Made Not-So-Simple

On July 23, 2020

By: Jon Jablon, Esq.

Case-by-case individualized negotiations are simple, and that simplicity is part of what makes vendors who perform these type of negotiations so attractive. This is not to say that it’s easy to secure great deals – but from a payor’s perspective, the process is generally fairly simple: you send a claim to the vendor; the vendor works its magic with the provider; the vendor sends the claim back to you with a negotiated rate attached to it and often a note about when it needs to be paid. No hassle, no fuss.

A small percent of the time, though, it gets more complicated. I don’t mean if a claim can’t be negotiated; I mean a situation in which there is a complex contractual dilemma associated with the negotiation.

For instance, we recently dealt with a situation where a provider was extremely slow to respond to our offers. We didn’t receive a refusal to negotiate; on the contrary, the provider’s billing agent was willing to work with us, but didn’t get back to us in a timely manner due to either internal bureaucracy or possibly just not being great at his job. Ultimately, what happened was that our client hit its 30-day payment mark, and the plan’s broker was adamant that the group not risk a late payment to a provider due to the provider’s own slowness to respond. So, the plan paid the claim at its allowable amount (somewhat higher than the desired negotiated rate) – but then after that payment was made, the provider finally responded to our last offer with a counteroffer of its own. The provider didn’t yet realize that it had already been paid a higher amount than the counteroffer it made to us – likely ascribed to either poor communication within the provider’s systems or office, or, again, possibly just this person not being great at his job.

The first thing we did was not to let the provider know that payment was already made, but to say, unequivocally, in writing, that we accept this offer. That was an important first step, since any time after the offer is made, it can be revoked for any reason (or for no reason) – but once we accept it, it can no longer be revoked. We wanted to make sure the agent didn’t have the chance to revoke the offer the second we told him that the plan had already paid.

After we issued a written acceptance to the written offer, we then informed the billing agent that the payment had already gone out, and we provided the calculations for how much the provider should refund to us from that payment – or, alternatively, the payor could cancel the check and write a new one. We gave them the choice. The billing agent, however, was not happy. He argued that when payment was made by the plan, the negotiation was canceled, and the fact that he made an offer to us after payment means that his offer wasn’t valid. Our legal team forcefully pointed out that there’s no basis in the law for that, and parties are free to negotiate even after payment has been made. The previous tendering of payment has absolutely no bearing on the right to negotiate; it simply creates an overpayment, which is the situation we were facing then. The provider tried to argue that its own offer was invalid. What a joke!

Fast forward two weeks, and we finally got the provider to accept the negotiated rate, which is ironic, because it was the provider’s own offer. We were confident that it would ultimately have this conclusion, but that didn’t make it any easier to stomach the provider’s bad attitude.

The moral of this story is that even something as simple as a plain old claim negotiation can still develop certain unexpected hiccups. Unfortunately, that is sometimes the case with all sorts of daily transactions! If you are facing any issues with negotiations, or other processes that should be simple but have become unexpectedly complex, The Phia Group is here to assist. Feel free to contact attorney Tim Callender at tcallender@phiagroup.com or 781-535-5631, and we’ll do whatever we can to help improve your self-funding experience.

The Supremes Weigh In

On July 15, 2020

Nick Bonds, Esq.

As the Supreme Court of the United States wraps up its first full term with Associate Justice Brett M. Kavanaugh rounding out the Roberts Court’s conservative majority comes to a close, we have a number of high-profile opinions to dissect.

In addition to the customary tumult baked into an election year, this SCOTUS session deliberated while the coronavirus pandemic raged and the resurgent wave of Black Lives Matter protests swept the nation and the world. Amidst this background, the Court delivered opinions on issues as wide-ranging and politically charged as presidential powers, Native American sovereignty and land rights, faithless elector laws and the Electoral College, and Dreamers and immigration law. Of particular interest to employers and sponsors of health plans, were decisions regarding abortion rights, contraception coverage, and protections for gay and transgender employees. These latter cases will claim our spotlight for now.

In June Medical Services v. Russo, the Court struck down a Louisiana abortion law that was virtually identical to the Texas law it previously struck down in the 2016 case Whole Woman’s Health v. Hellerstedt by a margin of 5-3. The Louisiana law, like the Texas law before it, required doctors performing abortions to have admitting privileges at nearby hospitals, but had the effect of shuttering nearly every abortion provider in the state. In the 2016 case, a majority of the Court held that the law placed an undue burden on access to abortion. Chief Justice John Roberts dissented in the 2016 decision, and supporters of the Louisiana law hoped that the new lineup on the Supreme Court’s bench would deliver them a victory this term. Chief Justice Roberts disappointed them, however, relying on the legal principal of stare decisis and falling back on the precedent established by the 2016 case to rule against the nearly identical Louisiana law in a 5-4 decision.

The Court’s big case on contraception coverage was the culmination of a seven-year legal battle known as Little Sisters of the Poor v. Pennsylvania. In a 7-2 (arguably a 5-2-2) decision, the Supreme Court upheld a regulation from the Trump administration that essentially exempted employers who cite religious or moral objections from the Affordable Care Act’s contraceptive coverage mandate. Writing for the majority, consisting of the Court’s conservative bloc, Justice Clarence Thomas held that the Trump administration was acting within its authority to provide exemptions for employers with “religious and conscientious objections.” Justices Elena Kagan and Stephen Breyer agreed with their conservative colleagues that the Trump administration had the authority to create these exemptions, but they reasoned that lower courts should examine whether the decision was “arbitrary and capricious” and invalid under the Administrative Procedure Act. Justice Ruth Bader Ginsburg, joined by Justice Sonya Sotamayor, wrote a fiery dissent, arguing that the Court failed to balance religious freedom with women’s health. As a result of the Court’s ruling, employers objecting to the coverage of contraceptives on religious or conscientious grounds may decline to cover contraceptives for their employees, and the Obama-era accommodation process that would still allow employees to access contraceptives without cost-sharing, is now optional.

Lastly, in a 6-3 decisions, the Court ruled that the Civil Rights Act of 1964 protects gay and transgender workers from discrimination in the workplace. Justice Neil Gorsuch wrote in Bostock v. Clayton County that Title VII of the Civil Rights Act prohibits employers from firing their workers for being gay, bisexual, or transgender. Justice Gorsuch took pains to make clear that the Court’s decision in Bostock was specifically targeted on Title VII and no other federal laws prohibiting discrimination “on the basis of sex,” but the Court’s rationale here will almost certainly echo into other litigations debating the application of that key phrase in other areas of law. Though the issue in Bostock was the hiring and firing of LGBTQ employees, the case has implications for employer’s health and benefit offerings and is likely to be at the heart of future litigation in this arena.

All of these rulings will be making their effects felt over the coming months, both practically and politically. We are here to help and ready to answer any questions stemming from these decisions.