In this episode of the Empowering Plans podcast, Ron and Brady discuss the inauguration of President Biden and what his presidency could mean for healthcare policy. With Democrats in control of government, a lot could get done in the first 100 days - on COVID-19 relief, the ACA, and rolling back Trump-era rules. Join us as we break it all down.
Click here to check out the podcast! (Make sure you subscribe to our YouTube and iTunes Channels!)
After a hectic political showdown, the president has signed legislation which includes comprehensive protection from surprise medical billing. This 5,000-page bill, along with a raging pandemic and a new administration, is certain to have our industry scrambling to keep up. Join The Phia Group in a new webinar format as they discuss the COVID-19 relief bill, the impact on the industry, and everything in between. From plan design changes to updates on fiduciary duties and subrogation, we have got you covered as we ring in the New Year. Following the one-hour webinar, there will be two 30-minute breakout sessions, addressing plan design changes, stop-loss issues, and legal and regulatory updates affecting claims.
Click Here to View Our Full Webinar
To obtain a copy of our webinar slides, please reach out to mpainten@phiagroup.com.
To obtain a recording of our Breakout Sessions, please reach out to mpainten@phiagroup.com.
Phone: 781-535-5600 | www.phiagroup.com
The Book of Russo:
When asked whether I believe the “glass is half empty, or half full,” I’m “positive” that I am an optimist. I realize that it can annoy people, but I assume it’s in a good way. Whoops; there I go again. Looking at 2020, I can’t help but note the positives that emerged from the previous year. Though I wasn’t able to travel (and my stockpile of hotel pens and miniature bottles of shampoo have reached an all-time low), The Phia Group still saw its client base expand, and retained the talents of many new Phia Group team members. That in turn means I got to meet and spend time with so many new employees and clients (albeit over Zoom, Skype, Ring Central, and a million other programs with which I’m not yet familiar). In truth – this led to me likely spending even more time with those great people than I would have spent pre-pandemic.
Perhaps, most important, I truly got to enjoy more quality time with my four kids and incredible wife. I saw how my children have persevered through the pandemic and rolled with the punches. They did the best they could with virtual birthday parties, distanced Halloween trick or treating, and intimate Christmas celebrations. So – in addition to positivity – I also feel pride. Pride in my family. Pride in my colleagues. Pride in our industry. Speaking of The Phia Group, and how it too has rolled with the punches – our Friday “Staff Zoom Meetings” will never go away; even after we’ve all been vaccinated and are once again occupying the same physical space. People love them, especially when the kids (including the furry four legged ones) join the calls. You can only truly get to know your employees by examining what is in their “home office” backgrounds! Additionally, in 2020 we moved into two new beautiful offices, we already hired almost 40 people, we added close to 3 million lives of business, we more than doubled our technological power and added two successful service lines. This experience and our ability to keep pushing forward, showed me that The Phia Group is truly a family that can conquer anything. Oh! I almost forgot to mention that we were named a 2020 Best Place to Work by the Boston Globe. This would be a tremendous honor any other year, but this year – it’s “next level” amazing. While other employers are cutting staff, pulling back benefits, withholding information, and always a little “too late” to respond to the needs of their team – The Phia Group approached how it deals with its own staff in the same way it approaches its clients and services. With innovation, and thinking ahead; with empathy and generosity, speed and customization. This, then, was one of my proudest moments and verified for me that our emphasis on amazing benefits and employee satisfaction proved successful. If your staff is happy, their worst product will still be better than the competitions’ best. Your clients will feel the love, and remain beyond satisfied. Internally and externally, that is the foundation of loyalty. I truly thank all of you – partners and Phia team members – for believing in Phia and partnering with us; it means the world to me. Be well. Be safe. Happy reading.
The Phia Group Named as a Top Place to work 2020
It is with great honor and humility that The Phia Group announces it has been named by The Boston Globe as one of the Top Places to Work in Massachusetts. In its 13th annual employee-based survey, The Boston Globe – having assessed anonymous employee feedback, and details about the company – determined that The Phia Group provides one of the most rewarding, meaningful employment experiences in the Commonwealth of Massachusetts.
Enhancements of the Quarter: Patient Defender Phia Fit to Print From the Blogosphere Webinars Podcasts The Phia Group’s 2021 Charity The Stacks Employee of the Quarter & Year Phia News
Enhancement of the Quarter: Patient Defender Value Reports
Clients of Patient Defender will be excited to hear that we have created a brand new report for them. Clients of The Phia Group’s innovative Patient Defender service can access this quarterly snapshot of the service and the client’s activity. It contains a myriad of data, including both currently active and historical items. While the Patient Defender service itself can be a life-saver for groups subject to claims being balance-billed, this report provides information that demonstrates the true value of the service, allowing users to continue to make informed decisions about their actions. With over 35,000 employee lives represented in these reports, we have already received positive feedback, and we will continue to monitor clients’ usage and feedback! To learn more about these reports or to receive a sample report, please contact our Sales Manager, Garrick Hunt, at 781-535-5644 or GHunt@phiagroup.com. Likewise, to learn more about Patient Defender, Phia Unwrapped, balance-billing support services or any other services The Phia Group offers, Garrick is available to you.
Service Focus of the Quarter: Phia Unwrapped
If you’re not familiar with reference-based pricing (or “RBP”), get familiar. RBP started as an outlier in the industry, but it’s getting more and more popular, even being embraced by many networks and providers as the new norm. As helpful as RBP can be for non-contracted claims, however, it is not without the risk of balance-billing and member disruption – which is why many TPAs and groups that would otherwise embrace RBP instead shy away from it. To anyone who sees the value in RBP but can’t tolerate the risks: The Phia Group is here to help! The Phia Group has for decades provided services meant to supplement and enhance RBP programs; from balance billing support – which is plugged into plans that choose not to use any network, to Phia Unwrapped. Phia Unwrapped is designed to pair with plans that opt to supplement, rather than replace, a primary PPO, targeting out of network claims and allowing a health plan to shed its wrap network … and with it the meager but expensive discounts it allows providers to charge (or requires plans to pay, depending upon how you look at it). Phia Unwrapped is anything but traditional; by replacing wrap network access and modifying non-network payment methodologies, this service enables health plans to secure payable amounts that are unbeatably low. Phia Unwrapped places no minimum threshold on claims to be repriced, and sets no limit on balance bills eligible for negotiation. Looking at those instances in particular, The Phia Group attempts to secure sign-off, ensuring providers will accept the plan’s payment as payment in full. Out-of-network claims run through The Phia Group's Unwrapped program yield an average savings of 74% off billed charges (three times the average wrap discount). There’s very little member disruption to boot, since the plan would keep its existing PPO and use Phia Unwrapped only for non-contracted claims. Phia Unwrapped can also be a way for a plan to switch from a traditional ”mega” network, with no meaningful steerage and therefore no meaningful discounts, to a narrower network with real steerage and real discounts, recognizing that a narrow network potentially means more non-network claims – which is exactly what Phia Unwrapped is designed to not only address, but leverage.
Success Story of the Quarter: Reviewing Proposed Service Agreements
The Phia Group’s consulting department (via PGCReferral@phiagroup.com) was recently asked by a broker to review a proposed service agreement between an employer group and a vendor. After the broker confirmed our written scope of work and flat fee quote, we got to work, and immediately noticed some odd provisions in the vendor’s draft agreement. Chief among them was a provision that guaranteed the vendor a certain PEPM fee per contract that the vendor was able to enter into with any medical provider. Percentage-of-savings fees are the norm as payment for obtaining contracts, since payment should ideally depend on the value added, but the PEPM fee increase per contract seemed unusual. Although there is a possible world in which that provision benefitted the group, there were no provisions whatsoever to qualify the extent of this requirement. The example we provided to the group (based in New York) when discussing the language was that if the vendor calls fifty doctors in California and negotiates 1% discounts with all of them, that’s fifty contracts, and fifty separate additions to the PEPM cost of the vendor’s service – despite the fact that the CA-based doctors would be unusable by the NY-based employees, and, maybe more importantly, that those negotiated discounts would be a joke. We provided the broker with a full explanation of our issues with this language, as well as numerous other problematic or otherwise notable things we saw within the agreement. The broker subsequently requested from the vendor a list of its contracted discounts, with which it received and was thoroughly dissatisfied. The vendor refused to change its payment model to a percent-of-savings, and the deal was terminated.
Phia Case Study: A Common Claim with Complications
A plan participant was involved in a motor vehicle accident while riding a motorcycle, and suffered severe injuries. The Plan suspended payment until the police report was received, after which the Plan excluded claims due to the report indicating that the participant had been driving recklessly, and based on witness testimony, may have been intoxicated. Worth note is that this exclusion was applied despite the accident apparently being primarily caused by another driver rather than the plan participant’s own recklessness. The police report also noted that the participant’s injuries were too emergent for the officer on scene to be able to determine the participant’s sobriety (or lack thereof), so the police report was not conclusive on the question of intoxication. As a result, the Plan sought the medical records. The ER physician’s report vaguely mentioned that intoxication was a possibility, but the physician did not have concrete evidence. Subsequently, the lab results came back and lacked any evidence of intoxication. The Plan felt that the physician’s initial comment about possible intoxication was sufficient to allow the Plan Administrator to deny the claims on the basis of DUI, but the TPA sought out the opinion of The Phia Group regarding whether the claims were deniable on this basis. The TPA correctly noted that while the Plan did not need evidence that proved intoxication “beyond a reasonable doubt,” it did need “some” evidence. After a review of the file and relevant facts, we concluded that the physician’s initial speculation absent any real basis would not likely constitute evidence upon which a decision could be based without risking arbitrariness; it does not constitute a medical opinion that the patient was in fact intoxicated, nor is it substantiated by the physical evidence provided. We therefore opined that it would likely not be reasonable for the Plan to deny the claim on the basis of intoxication, since there was no evidence of intoxication upon which the Plan Administrator could reasonably rely. Ultimately, based on this information, the Plan paid the claims, and the participant’s attorney subsequently agreed to reimburse the Plan from any settlement ultimately received from the driver who caused the accident.
Fiduciary Burden of the Quarter: Complaint Remark Codes
Adjudicating health claims is hard work. It can get complicated, especially in light of what can sometimes be tight timeframes within which EOBs must be provided. For that reason, in the face of numerous possibilities for why certain line items might be denied, it can difficult to comply with ERISA’s regulations requiring certain information within a remark code. Compliance with those regulations, however, is still very important. The Plan Administrator has a duty to ensure that the plan provides reasonable claim procedures, in accordance with regulations found at 29 CFR §2560.503-1. Among other things, these regulations provide that an EOB must provide both “The specific reason or reasons for the adverse determination” and “Reference to the specific plan provisions on which the determination is based.” We often encounter EOBs that identify a given line item as denied or partially denied with a justification such as “denied pursuant to the Plan Document”, and generally something so vague would tend to not satisfy these regulations. It’s also somewhat common for plans utilizing reference-based pricing methodologies to use a remark code to the effect of “denied due to reference-based pricing,” which in our opinion is similarly vague and likely noncompliant. Remark codes like these fail to identify the plan language to justify the denial, and they fail to provide the required level of specificity in rendering a denial. The purpose of these claims regulations is to promote a “meaningful dialogue” between the plan and claimant such that the claimant may formulate an appeal of a denial if necessary; for that reason, a remark code like “denied pursuant to the Plan Document” cannot possibly suffice, since it does not provide nearly enough information to allow the claimant to have that “reasonable dialogue” and formulate any meaningful appeal of a denial. The practical effect of issuing remark codes that are too broad or vague to meet the requirements of the claims regulations is that the plan will have failed to provide reasonable claims procedures, and the claimant will be deemed to have exhausted its administrative remedies (i.e. the claimant can jump straight to a lawsuit, since the plan has effectively denied the claimant its right to appeal), effectively nullifying the plan’s internal appeals requirements. For those of you with children, remark codes like the examples here roughly equate to the classic “because I said so.” That can work well in the parenting context, but not so well under ERISA; luckily, parents are not required by law to provide the child proper reasoning and an opportunity to appeal the decision – but health plans are. If your remark codes include “denied because the plan said so”, please don’t hesitate to have them reviewed. The Phia Group is here to help!
Webinars:
• On December 16, 2020, The Phia Group presented, “A Transparent 2021 - Further Analysis of the Year to Come,” where we discussed the rules that will impact 2021, including the recently released transparent pricing rules.
• On November 16, 2020, The Phia Group presented, “Desperately Looking Forward to 2021,” where we discussed hot topics, forecasting what we expect to see in 2021, and giving you a head start as you – like we – plan, and look forward, to 2021. • On October 19, 2020, The Phia Group presented, “New Opportunities to Save, Create Revenue & Avoid Scary Practices,” where we discussed some of the industry’s scariest blunders and gruesome practices.
Be sure to check out all of our past webinars!
Podcasts:
Empowering Plans
• On December 23, 2020, The Phia Group presented, “Balance Billing During COVID-19 and Beyond,” where our hosts, Brady Bizarro and Mitch Hilbert, discuss how balance billing has been on an uptick during COVID, and how patients can possibly prevent this from occurring. • On November 30, 2020, The Phia Group presented, “COVID-19 Vaccine Candidates – What Health Plans Need to Know,” where our hosts, Brady Bizarro Andrew Silverio, discuss current COVID-19 vaccine candidates and everything health plans and employers need to know about them. • On November 13, 2020, The Phia Group presented, “Election Aftermath – Where Things Stand,” where our hosts, Ron Peck, Brady Bizarro, and Nick Bonds reunite to discuss their developing thoughts on the presidential election results. • On November 9, 2020, The Phia Group presented, “2020 Election Results (So Far) – Our Takeaways,” where our hosts, Ron Peck and Brady Bizarro, are joined by Nick Bonds, to discuss the 2020 election results. • On October 26, 2020, The Phia Group presented, “The Final Debate & Election Predictions,” where our hosts, Brady Bizarro and Nick Bonds, break down the final presidential debate of the campaign season, focusing in on the candidates’ healthcare plans. • On October 19, 2020, The Phia Group presented, “Behind the Scenes – Town Halls, Nominees & Medicare-for-All,” where our hosts, Ron Peck and Brady Bizarro take you behind the scenes, avoiding the bright lights of presidential town halls and Supreme Court confirmation hearings. • On October 13, 2020, The Phia Group presented, “Healthcare on Stage & COVID-19 in the White House,” where our hosts, Ron Peck and Brady Bizarro guide you through a chaotic week for healthcare news, including the first presidential debate, COVID-19 infecting the President and much of the West Wing, and more.
Be sure to check out all of our latest podcasts!
Back to top ^
Phia Fit to Print:
• BenefitsPro – https://www.benefitspro.com/2020/12/17/leave-entitlements-under-the-ffcra-set-to-expire/ – December 17, 2020 • BenefitsPro – Hispanic and Latino health and the Affordable Care Act – December 07, 2020 • Self-Insurers Publishing Corp. – Best Practices For Updating The Employee Handbook In A Pandemic – December 3, 2020 • BenefitsPro – Remembering why we do it: Employer-sponsored health plans – November 20, 2020 • BenefitsPro – ACA in court: Reactions from around the industry – November 11, 2020 • Self-Insurers Publishing Corp. – Cobra Coverage and COVID-19 – November 5, 2020
• Self-Insurers Publishing Corp. – Planning Ahead: COVID-19 And Other Considerations For 2021 Health Plan Renewals – October 2, 2020
From the Blogoshpere:
• Offer More for More! If and when private health benefits cannot compete with a public option on price, they will need to re-invent the industry. • Updating the Employee Handbook in Unprecedented Times. Have you made your updates yet? • There is no Such Thing as a 1099 Employee. A 1099 employee isn’t an employee of yours at all! • FFCRA Leave Entitlements Set to Expire December 31, 2020. How much do you know about the Families First Coronavirus Response Act? • I Hate Surprises! Surprise billing expected to come to a halt.
To stay up to date on other industry news, please visit our blog.
The Stacks:
Best Practices For Updating The Employee Handbook In A Pandemic
By: Philip Qualo, J.D. – December 2020 – Self-Insurers Publishing Corp. For many employers, the start of the holiday season usually brings forth the time of year to brush the dust off of the employee handbook and determine what changes are desired, and required, for the upcoming year. Although employers have generally been quick to adopt and enforce policies addressing COVID-19, the rapidly changing guidance and onslaught of personal and professional restrictions necessitate swift revisions as best practices and requirements continue to change from day to day. In general, employers should review and revise their employee handbooks at least annually to account for changes in local, state, and federal laws and workplace safety requirements. After an unprecedented year that unleashed a pandemic on the world, however, employers and their compliance teams are scanning their employee handbooks, scratching their heads, and wondering where to begin. In finalizing our own employee handbook for a hopefully better 2021, I thought it would be helpful to share some lessons I learned on updating an employee handbook in challenging times..
Click here to read the rest of this article
Cobra Coverage and COVID-19
By: Kevin Brady, Esq. – November 2020 – Self-Insurers Publishing Corp. It is an unfortunate, but well-known, fact that the COVID-19 pandemic has had a significant impact on the U.S. economy. With the unemployment rate reaching a high of 14.7% in April, it is no surprise that many hard-working Americans lost their jobs. Given that many Americans rely on those jobs for their health plan coverage, the loss of income, combined with the loss of health coverage, has been and could continue to be catastrophic for many.
Planning Ahead: COVID-19 And Other Considerations For 2021 Health Plan Renewals
By: Jennifer M. McCormick, Esq – October 2020 – Self-Insurers Publishing Corp. As summer fades away and the leaves start to fall, many of us must start planning for 2021. The expectations and goals we set in January of 2020 have likely required review and adaptation. As a result of COVID-19, employers encountered unprecedented hurdles. In addition to the economic costs facing employers due to this pandemic, employers need action plans to address the logistical and morale challenges of COVID-19. While financial considerations are typically on the list of perpetual concerns, employers must now ensure they have action plans for employees needing to balance work and childcare, workplace safety, and the continually evolving regulations regarding COVID-19. Thankfully, with 2021 around the corner, employers have an amazing opportunity to boost employee morale and mitigate costs with thoughtful plan design. Employers can (and should) use the upcoming renewal opportunity to let their health benefits shine and invite excitement for employees about their 2021 health benefits.
The Phia Group's 2021 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 2021 charity is the Boys & Girls Club of Metro South.
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 Metro South (BGCMS) 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 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.
Thanksgiving Dinner Delivery
Thanksgiving dinner delivery to The Boys & Girls Club of Metro South was a little different this year. The Phia Family was out and about the week of Thanksgiving, delivering dinners to the The Boys and Girls Club of Metro South, so the families could pick up their meals when they picked up their children. Additionally, our Phia Family in Idaho and Louisville were out and about spreading the same cheer to five families in the Boise area and five families in the Louisville area. In total, we delivered 32 meals this year! Check out the great picture we were able to get from that special day! We hope everyone had a wonderful Thanksgiving!
Angel Tree
Each year employees of The Phia Group pick nametags from the Angel Tree that sits in our main lobby. On those tags are names, ages and the wish lists of children from The Salvation Army. This year we had over 130 nametags! The Phia family loves to give back to the community; our greatest joy is providing these children with all of their holiday wishes.
Christmas Came Early
The Phia Group had the pleasure of bringing Christmas joy to the Boys & Girls Club of Metro South. Adam Russo and his helpers virtually passed out hundreds of gifts to over 130 children. We hope these children enjoy their new toys as much as they enjoyed spending time with virtual Santa!
Get to Know Our Employee of the Quarter: Kaitlyn Lucier
To be designated as an Employee of the Quarter is an achievement that is reserved for Phia employees who truly go above and beyond their day to day responsibilities. This person must not only transcend their established job expectations, but also demonstrate with fervency a dedication to The Phia Group and its employees that is so unparalleled that it cannot go without recognition. The Phia Explore team has made the unanimous decision, without hesitation, that there is no one more deserving than our very own Kaitlyn Lucier, The Phia Group’s Q4 Employee of the Quarter! Kaitlyn has been able to handle any challenge that has been thrown at her with ease. She has done a phenomenal job training the new hires in CSD. She is always available to help others in need and being able to rapidly answer a question along with giving informative answers, so others are not lost. She is a valuable asset to CSD and is an outstanding hard worker.
Congratulations Kaitlyn, and thank you for your many current and future contributions.
Get to Know Our Employees of the Year: Philip Qualo
To be designated as an Employee of the Year is an achievement that is reserved for Phia employees who truly go above and beyond their day to day responsibilities. This person must not only transcend their established job expectations, but also demonstrate with fervency a dedication to The Phia Group and its employees that is so unparalleled that it cannot go without recognition. The Phia Explore team has made the unanimous decision, without hesitation, that there is no one more deserving than our very own Philip Qualo, The Phia Group’s 2020 Employee of the Year! Philip has done a phenomenal job with the Diversity Inclusion Committee- conducting the meetings, putting together all of the plans, reviewing with the Executive team & providing staff with the information. He has put in a lot of extra hours working late many nights, to ensure that everything was completed along with his PGC tasks. He definitely deserves recognition for all of his hard work!
Job Opportunities:
• Chief Financial Officer • Customer Service Representative • Senior Vice President, Sales • Claim Analyst
See the latest job opportunities, here: https://www.phiagroup.com/About-Us/Careers
Promotions
• Liz Pereira has been promoted from Case Investigator to Case Analyst
New Hires
• Nathan Letourneau was hired as a Claim and Case Support Analyst • Alexander Araujo was hired as a Customer Care Representative • Brittany Farr was hired as a Customer Care Representative • Thalea Gauthier was hired as a Customer Care Representative • Alexia Holloway was hired as a Customer Care Representative • Catherine Villanueva was hired as a Customer Care Representative • Lisa Hill was hired as a Sr. Subrogation Attorney • Anthony Jean was hired as an Accounting Administrator I • Thomas Cole was hired as a Claim Analyst • Skyla Mrosk was hired as a Claim Analyst • Andrew Mead was hired as an IT Intern • Alexandre Houle was hired as a Provider Relations Clinical Claims Specialist • Aastha Vats was hired as an ETL Specialist • Julie Padden was hired as an Executive Assistant • Sheena Roberts was hired as a Sr. Administrative Assistant • Kristen Melanson was hired as a Claim and Case Support Analyst • Hillary Burmester was hired as a Claim Recovery Specialist • Kaitlyn MacDonald was hired as a Health Benefit Plan Consultant I
Phia News:
Candy Corn Contest
We set up our annual Candy Corn Contest in the front lobby of our Canton office and asked everyone to guess how many pieces of candy corn were in the jar! For those working from home, we sent out pictures of the candy jar with measurements, and had over 100 submissions. The winner of this contest was Lisa Decristoforo, and the total count was 811. Lisa guessed that there were 803 pieces of candy corn. It’s hard to believe that all of those pieces of candy fit into that small jar!
Pumpkin Carving Contest
In October, The Phia Group held its first Pumpkin Carving contest. We had over 20 submissions and it was a tough decision to make, but the Phia family had to pick one. Congratulations to the winner, Catherine Baskerville. We are all so impressed with your creativity and carving skills. We look forward to our next Pumpkin Carving contest!
Mask Contest With everyone being asked to work from home, we wanted to make sure we kept all employees engaged and entertained. We put our thinking caps on and asked everyone to submit photos of their most creative masks, and we had the Phia family vote for their favorite mask during a virtual staff meeting. We are proud to announce that Regina Cattel was the winner of this contest, with her super fun tiger mask!
The Phia Group Reaffirms Commitment to Diversity & Inclusion
At The Phia Group, our commitment to fostering, cultivating, and preserving a culture of diversity and inclusion has not wavered from the moment we opened our doors 20 years ago. We realized early on that our human capital is our most valuable asset, and fundamental to our success. The collective sum of individual differences, life experiences, knowledge, inventiveness, innovation, self-expression, unique capabilities, and talent that our employees invest in their work, represents a significant part of not only our culture, but also our company’s reputation and achievements. We embrace and encourage our employees’ differences, including but not limited to age, color, ethnicity, family or marital status, gender identity or expression, national origin, physical and mental ability or challenges, race, religion, sexual orientation, socio-economic status, veteran status, and other characteristics that make our employees unique. The Phia Group’s diversity initiatives are applicable to all of our practices and policies, including recruitment and selection, compensation and benefits, professional development and training, promotions, social and recreational programs, and the ongoing development of a work environment built on the premise of diversity equality. We recognize that the success of our company is a direct reflection of each team member’s drive, creativity, diversity, and willingness to exercise initiative. With this in mind, we always seek to attract and develop candidates who share our passion for the healthcare industry and our commitment to diversity and inclusion.
Best Practices for Updating the Employee Handbook in a Pandemic
By Philip Qualo, J.D.
For many employers, the start of the holiday season usually brings forth the time of year to brush the dust off of the employee handbook and determine what changes are desired, and required, for the upcoming year. Although employers have generally been quick to adopt and enforce policies addressing COVID-19, the rapidly changing guidance and onslaught of personal and professional restrictions necessitate swift revisions as best practices and requirements continue to change from day to day. In general, employers should review and revise their employee handbooks at least annually to account for changes in local, state, and federal laws and workplace safety requirements. After an unprecedented year that unleashed a pandemic on the world, however, employers and their compliance teams are scanning their employee handbooks, scratching their heads, and wondering where to begin. In finalizing our own employee handbook for a hopefully better 2021, I thought it would be helpful to share some lessons I learned on updating an employee handbook in challenging times
Avoid Non-Static COVID-19 Provisions
As updating an employee handbook multiple times within a fiscal year can be an administratively burdensome task, a best practice is to ensure all policies included or updated in the handbook are relevant, as well as static, for the duration of the applicable fiscal year. This has been simple in most years, however, in response to the COVID-19 pandemic, the federal government passed a series of comprehensive laws, with rapidly approaching expiration dates, aimed at protecting American workers by regulating group health plans and imposing new leave paid entitlements on covered employers, such as the Families First Coronavirus Response Act (FFCRA). In addition to the FFCRA, state and local laws guidance continue to be updated at an unpredictable frequency that often necessitates a quick and temporary change to workplace rules in order to comply safety requirements. For employers that sponsor self-funded plans, it is also important to keep in mind that for any newly enacted leave entitlements that continue coverage, the applicable Plan Document should be amended to reflect this continuation of coverage and communicated to the stop-loss carrier so ensure no gaps in coverage. In order to avoid the challenge of updating and re-distributing an employee handbook multiple times within a single year, it may be helpful to limit specific references to COVID-19. For example, I chose to use terms such as “Public Health Emergency” and “Pandemic” where possible. If COVID-19 has taught us anything, it is that life is unpredictable. Now that we have collectively experienced and continue to endure this pandemic, we now know that public health emergencies and pandemics can happen to us… yes, even to us. As such, including language in an employee handbook referencing an employer’s responsibility to contain a public health emergency or pandemic would apply to COVID-19 and other critical health crisis that poses a threat to workplace safety. For policies with an approaching expiration date, or that are likely to change frequently based on changing guidance, it may be helpful to generally reference them in the employee handbook and detail them in a separate platform or notice that can be updated and re-distributed with ease. For example, we use an intranet platform to house our most up to date COVID-19 policies. This allows for quick enhancements of relevant policies and immediate notification to employees. Although any platform accessible to all employees may be appropriate, an employer should take the additional step of distributing, announcing, or where applicable, requiring sign-off for each and every change to document compliance with notification requirements. For example, I expanded the handbook to include language that referenced the “Direct Threat Exception” to Americans with Disabilities Act (ADA) limitations to explain my employer’s ability to temperature check and inquire about health status. In this provision, I chose to leave out the term “COVID-19” because the direct threat exception would likely apply to any other declared public health emergency that may arise. The temperature check policies, on the other hand, may not be applicable in a different type of pandemic.
So You’re Saying Not to Include Any COVID-19 Language?
Employee handbooks are more than just a collection of policies for most employers, they are a snapshot of that year, a yearbook of sorts. Although some memories are better left … not remembered…employers may one day want to reminisce on challenging year. On the other hand, as COVID-19 is likely not going anywhere as soon as we hoped for, it may be a good idea to include some static references to COVID-19. So I would not recommend pretending COVID-19 does not exist when it comes to the employee handbook.
For example, in our own employee handbook, I developed a paragraph that describes COVID-19, briefly, and details our companies commitment to follow all state, local, federal and Centers for Disease Control (CDC) guidance. As this guidance is subject to change, and has from day to day since the start, I did not include specific references to our face mask policy. Is this important? – absolutely. Is the handbook, however, the best place to house a policy that may be outdated by the time it is distributed? – probably not. In summary, there are rarely two employee handbooks that are entirely alike in this world. There are not many rules surrounding what needs to go in one, or what needs to go out. For the most part, employee handbooks are not even legally required. It is, however, a strongly recommended best practice for an employer to maintain one and ensure appropriate policies as determined by their specific compliance needs. Therefore, employers are free to include any and every COVID-19 policy and language they desire. In minimizing the non-static language, however, employers can demonstrate compliance with all applicable rules while sparing the administrative burden involved in reconciling existing handbook provisions with the day to day changes to mandated workplace safety guidance.
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COBRA Coverage and COVID-19
By: Kevin Brady, Esq.
It is an unfortunate, but well-known, fact that the COVID-19 pandemic has had a significant impact on the U.S. economy. With the unemployment rate reaching a high of 14.7% in April, it is no surprise that many hard-working Americans lost their jobs. Given that many Americans rely on those jobs for their health plan coverage, the loss of income, combined with the loss of health coverage, has been and could continue to be catastrophic for many.
On the (somewhat) bright side of things, those who lose their jobs are not always left optionless, as most individuals who lose their employer-sponsored health coverage will generally be eligible for continued coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA provides workers and their families the option to continue group health plan coverage (for a limited period of time) under certain circumstances which cause a loss in group health plan coverage. Further, the employee, rather than a combination of the employee and employer, bears the full cost of coverage when enrolled in COBRA. From the individual’s perspective, the cost alone, especially in the midst of the pandemic and the resulting economic uncertainty makes COBRA a tough sell for former employees, especially those who have other coverage options available.
From an employer’s perspective, administering COBRA coverage effectively- and most importantly, correctly is a difficult task. Employers have strict obligations under COBRA. They must provide adequate notice of a “qualifying event” to ensure that their former employees and their dependents are offered coverage. What makes things even more complicated, is that employers who self-fund their health plan coverage actually serve as both the employer under COBRA (subject to certain obligations), and the plan administrator (subject to a distinct set of obligations) as well. This nuance only adds to the multitude of obligations and the resulting confusion that an employer must contend with. As is this case with a great many other things, those obligations have become even more difficult to understand and satisfy in the wake of the COVID-19 pandemic.
As mentioned above, COBRA provides the opportunity to continue group health plan coverage if certain criteria are satisfied. Private employers who employ 20 or more workers, are generally subject to COBRA if they offer if a group health plan. COBRA must be made available for the “covered employees” of the employer, and their dependents, if they experience what is known as a qualifying event.
The COBRA regulations provide that a qualifying event may be any of the following occurrences:
While the situations and occurrences which are considered qualifying events may be widely known, what is often overlooked is that the qualifying event must also cause a loss of coverage under the plan. Therefore, if plan coverage does not terminate as a result of the qualifying event, then the individual does not become eligible for an offer of COBRA coverage from the employer.
One instance where this principle is becoming more and more relevant, relates to employees who are furloughed or laid off. Given the economic uncertainty surrounding the COVID-19 pandemic, an unprecedented number of employers have turned to workforce reduction measures such as furloughs and/or layoffs to ensure business continuity.
On the surface, a layoff or furlough may appear to be a qualifying event which triggers an offer of COBRA coverage to the affected individuals. While it may very well be a qualifying event, it very much depends on the facts and circumstances of the given case. For example, many health plans choose to continue plan coverage in the event of a leave of absence, or even a temporary layoff or furlough. This approach is actually quite common. Although typically outlined within an employer handbook or policy manual, effectively outlining the instances in which plan coverage will be continued within the plan document can mitigate the risk of a potential dispute with the stop loss carrier.
In essence, the employer must review the plan document to determine whether it properly allows for continued coverage while an individual is furloughed or laid off. If the plan outlines said continuation, then the individual has not experienced a qualifying event and the employer’s obligation to offer COBRA coverage has not been triggered.
Of course, the individual may become eligible for COBRA continuation coverage if they do not ultimately return to work or if their continued plan coverage expires during the maximum coverage period of COBRA. If that is the case, the employer’s obligations would then be triggered, and the employer would be required to offer coverage in accordance with COBRA’s requirements. Fortunately for employers, there is some flexibility in the timeframe in which the offer of coverage must be made.
The Internal Revenue Service (IRS) along with the Department of Labor (DOL) issued final rules which extend a number of important benefit plan timeframes. As it relates to COBRA, plan administrators do have some flexibility as it relates to their obligation to notify the individual of COBRA coverage.
On the other hand, the rules also extend the period in which individuals can elect COBRA coverage, as well as the period of time in which an individual must pay their premiums. These extensions are sure to make administering COBRA eligibility another difficult task for the foreseeable future.
Any way you look at it, COBRA continuation coverage generally imposes a number of obligations on employers, plan administrators, and those who would enroll in COBRA coverage as well. Determining what those obligations are, how to apply them, and who may be eligible for them is no small feat even without the regulatory and economic uncertainty of the COVID-19 pandemic factored in. In order to avoid potential compliance issues, as well as mitigating the risk of reimbursement issues down the road, plan administrators should pay special attention to these COVID-19 related issues. Review the plan document to determine whether individuals furloughed and laid off are eligible to continue coverage under the plan, or alternatively under COBRA. Until the economic consequences of the pandemic dissipate, the complications and nuances associated with COBRA continuation coverage are sure to persist along with it.
Planning Ahead: COVID-19 and Other Considerations for 2021 Health Plan Renewals
By: Jennifer M. McCormick, Esq.
As summer fades away and the leaves start to fall, many of us must start planning for 2021. The expectations and goals we set in January of 2020 have likely required review and adaptation. As a result of COVID-19, employers encountered unprecedented hurdles. In addition to the economic costs facing employers due to this pandemic, employers need action plans to address the logistical and morale challenges of COVID-19. While financial considerations are typically on the list of perpetual concerns, employers must now ensure they have action plans for employees needing to balance work and childcare, workplace safety, and the continually evolving regulations regarding COVID-19. Thankfully, with 2021 around the corner, employers have an amazing opportunity to boost employee morale and mitigate costs with thoughtful plan design. Employers can (and should) use the upcoming renewal opportunity to let their health benefits shine and invite excitement for employees about their 2021 health benefits.
In planning for the upcoming benefit year, design modifications can generally be categorized into two categories: (1) regulatory changes; and (2) recommended changes. Lingering uncertainty and future unknowns make both categories of design modifications equally important.
Regulatory Changes
While the list of regulatory items that must be changed may seem overwhelming, some of the changes may ultimately be welcomed by employers or employees.
For example, benefit updates for COVID-19 related services and modified rules regarding continuation coverage were likely well received by employees. In addition to the benefits and continuation coverage provided for by The Coronavirus Aid, Relief, and Economic Security (CARES) Act and Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) and Internal Revenue Service (IRS) issued regulations offering additional relief for participants. Specifically, the regulations allow additional time for participants to take actions such as electing (or paying premiums for) continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and filing an appeal of an adverse benefit determination or requesting an external review. Relief will apply retroactively from March 30, 2020 until 60 days after the end of the national emergency.
Relevant regulations did specify that penalties would not be imposed if plans were administered in compliance with the extended timeframes, even if contrary to the specific terms of the underlying plan document materials. Ambiguity surrounding deadlines, however, leads to unnecessary confusion for individuals enrolled in the health plan. To eliminate this concern, plan materials should be updated and include details regarding the extended timeframes. Disclosure and inclusion of such information will also function to mitigate potential gaps that may arise between plan materials and stop loss policies.
In addition to the tolling of certain timeframes, employees may also welcome the updated Summary of Benefits and Coverage (SBC) templates for 2021, also requiring revision and implementation. The SBC is intended to provide uniform and consistent information regarding available plan benefits. While modifications to the 2021 SBC template are not extensive, they do include updates to the coverage examples and the removal of information pertaining to the individual mandate.
Regarding employers, however, certain review and revision may be needed pertaining to plan out-of-pocket maximums. Specifically, on an annual basis the Department of Health and Human Services (HHS) determines the adjustments for the Affordable Care Act (ACA) in-network out-of-pocket maximums for non-grandfathered plans. In addition, the IRS sets the standard for high-deductible health plans. These iterations are expected annually and should be reviewed and applied in alignment with employer intentions.
The interesting twist on out-of-pocket maximums that employers may be contemplating (or have already addressed) is the policy change on drug manufacturer assistance calculations for non-grandfathered plans. An employer plan is not required, but may, count toward the out-of-pocket maximum drug manufacturer assistance, coupons, or other cost reductions. This is true even if the assistance in question is available on a drug without a generic equivalent. This update may create an opportunity for cost-savings as plan out-of-pocket maximums are reviewed; however, employers should examine whether any other state laws require consideration.
Another regulatory update seemingly well received by both employers and employees is the relief contained within IRS Notice 2020-29. This relief, while temporary until December 31, 2020, relaxed the rules for mid-year election changes offered under Section 125 cafeteria plans. Pursuant to this guidance, employees (if the employer decides to offer this optional election, and documents the offering accordingly by way of amendment) could revoke an existing health plan election if certain factors were met. For employees, this opportunity might be the flexibility needed to reduce or modify coverage as finances face greater and continued uncertainty. For employers, this offering might foster goodwill among employees anxious to make plan modifications as a result of less certain financial times.
Recommended Changes
Since the list of 2021 required regulatory changes may not be as extensive as in prior years, employers may want to consider modifying benefits to account for the evolving needs of their workforce.
Health benefits remain valuable during the pandemic. Employers who consider implementation of 2021 updates that coalesce with employee needs and wants will only enhance goodwill. For example, as part of end of year discussions, an employer should consider polling employees to identify benefits they consider absent or not robust enough. It is possible the stress of a pandemic means more employees are desirous of holistic health options such as acupuncture or nutritional counseling. Identifying benefit enhancements that most effectively promote employee wellness and have the greatest potential to improve employee happiness and productivity is of paramount importance.
Incentivization of certain behaviors under the plan is one avenue employers might explore. It is evident that certain benefits were more heavily accessed than others during this past year. Heeding feedback regarding the needs of employees during this trying time poses an opportunity to incentivize utilization that benefits both the employer and the employee. For example, many appointments with primary care physicians were postponed due to limited availability, discouraged, or canceled, and employees did not have access to care as they would under traditional circumstances. An alternative, offering focused medical care for employees while promoting financial predictability (i.e. potential cost savings) for the health plan, is direct primary care. As permissible per other plan agreements, the addition of a direct primary care benefit should be considered. This additional benefit would create direct access for employees to connect with a physician and receive the customized, tailored care needed during these challenging times, simultaneously easing ‘access to care’ anxiety during a pandemic.
In addition to direct primary care, technology offers availability of greater connections to care via telehealth and telemedicine. Telehealth services have been valuable as this option reduces the risk of exposure or transmission of COVID-19, while still providing the necessary virtual care. For example, telehealth has been useful for screening and accessing whether potential COVID-19 patients need to be seen in a hospital setting or care can be managed from home. Over the course of the pandemic, eased restrictions encouraged providers and patients to utilize telehealth services. Employers should revisit their benefit designs to determine whether and to what extent telehealth services are currently available to participants, and whether further modifications are necessary. By way of illustration, employers should review whether telehealth is a current standalone benefit or offered only through a specific vendor. The availability of telehealth services should be clearly addressed and denoted within the plan materials to eliminate coverage related confusion under the health plan.
At the outset of COVID-19, many individuals feared limited supplies, supply chain disruptions, or quarantine status restrictions would impact the ability to access necessary medications. It is very common, and for myriad reasons, however, for health plans to impose prescription refill restrictions. Limited access has the potential of leaving employees in a situation where they are without life-saving medications. With the continued unknowns of the pandemic, employers may consider relaxing refill protocols, ensuring access to critical prescriptions. As permissible by the relevant plan agreements, employers could allow a 90-day supply instead of a 30-day supply in certain circumstances, investigate the availability of home delivery for prescription drugs, or evaluate mail-order pharmacy services. Prescription drug design flexibility not only has the potential to safely improve employee access to medication, but also create alternative prescription options that save money for the health plan.
Employees continue to face uncertainty as it relates to COVID-19, and this likely creates additional worry, stress and anxiety. Many employees are parents and caregivers and entering another school year with distance and remote learning, presents challenges for everyone. Pandemic related hardships and disruptions have had a negative impact on mental and behavioral health. As a result, taking care of mental and behavioral health needs is essential. Enhanced benefits should be prioritized as employees need access to resources to address any mental and behavioral health concerns they face during these challenging times. Employers should examine the current health plan to determine whether revised benefits are necessary to offer increased support.
Next Steps
With the end of the year rapidly approaching, employers must soon make critical decisions about employee benefit offerings. Once solidified, a review and update of the current health plan materials is necessary to ensure these benefit modifications are described accurately.
In addition to updating plan document materials, employers must review and revise other corresponding agreements and policies to ensure seamless and gap free benefit administration. For example, the updated plan document materials should be compared against the stop loss policies, network agreements, and vendor agreements to identify (and eliminate) coverage gaps.
It may seem like an overwhelming task, but by proactively revising employee benefit materials to address these items employers can generate employee enthusiasm for the upcoming 2021 benefit year.
By: Bryan M. Dunton
Many people use the beginning of a new year as a reason to better themselves physically and emotionally, often setting goals for themselves in the process. After the pandemic of 2020 altering everyone’s plans, there’s sure to be a renewed dedication to personal goals this year. When deciding what types of personal goals to accomplish, it is important to ask yourself why these specific things are so important to you. Why do you want this change? How will it help you emotionally or physically? What’s stopping you from achieving it and how can you move beyond those obstacles?
Year after year, one of the most prominent goals is to be healthier. Two Years Ago, for example, 28% of people resolved to lose weight, 54% wanted to eat healthier, and 59% wanted to exercise more. Certainly, these are great goals to set for yourself, especially in the wake of 2020, when many people were locked down in their homes for extended periods of time and many of our favorite activities were closed. Some employers have taken a very proactive approach in encouraging their employees to be active despite the conditions created by the pandemic. Over the summer and early fall of 2020, Phia Group employees participated in a three-month long virtual race from our Canton, MA headquarters to Progressive Field (CEO Adam Russo is a huge Cleveland sports fan) as a way to get teammates moving and have some cross-department fun while many worked remotely.
Employers can make a positive difference in the health and wellness of their employees by providing the tools to become educated consumers of healthcare. Here at the Phia Group, we encourage employees to be healthy and provide them with the information and tools to do so. This includes both mental wellness as well as physical health through services such as direct primary care. We believe in educating employees about being proactive in self-care and how it factors into cost-containment for their own health expenses and that of the health plan itself. Phia often holds informational meetings for employees to discuss existing and new services being offered to maximize our opportunities for quality care at an affordable price. We have found that providing that targeted education and promoting the atmosphere of being consumers of healthcare, has led to significant cost savings for the plan.
While resolving to lose weight, eat healthier, and exercise more are important goals in the effort to having a healthy new year, we should also resolve to be educated about out health and healthcare and in so doing become consumers in the healthcare industry.
As always, we are happy to discuss these and the multiple other programs we use to contain costs with any employer who seeks to introduce similar methods to their health plans.
With an eye towards the new year, there is a strong desire for most of us that it will be different than how 2020 turned out. We hope that you take time to set some achievable goals for your own personal health and self-care this year. Here’s to 2021!
In this episode of the Empowering Plans Podcast, Ron Peck is joined by Corey Crigger, an attorney in the Provider Relations Department. Ron and Corey discuss balance billing in the COVID world, medical tourism, and vaccine passports. What can we expect in the not so distant future? No one has a crystal ball, but Ron and Corey offer an insight on the implications of a tiered vaccine rollout that may not be uniform and business requiring proof of passport. Also, what parts of the pandemic does Corey see as a positive? Tune in to find out!
By: Jon Jablon, Esq.
Business is complicated, and a recent consulting inquiry from a client recently reminded me just how complicated it can be, especially when health plans are involved. In the course of a given health plan’s lifespan, there is the potential for numerous different things to happen, and one such possibility is called a “spinoff”, which is the term used when one benefit plan is split into more than one benefit plan.
When a health plan “spins off” into two health plans, neither plan is considered an “original” or “existing” plan, but each plan effectively becomes a brand new plan. Effecting a spinoff can be beneficial if an employer wants to treat classes of employees differently, which often becomes relevant as the employer expands its business, enters new sectors or new industries, widens its employee base, or otherwise changes its needs or mindset. If one section of a company grows much faster than another, for instance, it could be a good idea to separate the two into different companies, and different corporate structures could be used for different purposes and to achieve different results. A health plan being “spun off” into two (or more) plans can help insulate the assets of one plan from the other, which can be useful for stop-loss purposes (for instance to have different plans underwritten differently) or for funding purposes.
Since health plans have assets, in the form of money paid in by employees and the plan sponsor and paid out in benefits, there must be a way to allocate those plan assets accordingly. It may be intuitive to think “well, if individuals paid into Plan A while they were members of Plan A, then that money belongs to Plan A, and the new Plan B will start fresh”, that is not the approach the regulators have taken. If some employees moved from Plan A to the brand new Plan B but assets did not get transferred from the old plan to the new plan, then the new plan would have no assets, and could not pay claims!
To account for this, the applicable regulations tend to require the plans to allocate Plan A’s assets to Plan B based proportionately upon the plan assets attributable to their membership. If you think that sounds complicated, don’t forget that Plan A’s pool of assets is far from static; Plan A constantly gains and spends money, and attributing every dollar to an individual can be extremely complex (and it can even change day-to-day). In classic DOL and IRS fashion, plans are given the instruction to make “reasonable actuarial assumptions” to calculate these things – which does not really help explain much at all. It’s the same as when the regulators tell health plans to use a “good faith, reasonable interpretation” of the guidance they publish; in a way, it allows plans to have a safety net as long as they exercised good faith, but I for one would much rather have some actual guidance. Maybe even a calculator with specific fields, like for Minimum Value calculations!
Employers sometimes view health plans as a handicap to achieving more efficient corporate structures, or they worry that their health plans will suffer as a result of certain factors that are apparently beyond their control. This “spinoff” is one example of a tool that is within an employer’s control; in fact, employers are given a very wide latitude to structure their health plan (or plans) as they see fit, and with a little creativity and a lot of math, that latitude can be used to an employer’s advantage.
By: Nick Bonds, Esq.
Does anyone else have fond memories of the choose your own adventure genre? “To explore the lab, turn to page 34!” Remember those? My favorite were the Goosebumps stories. I distinctly remember a story where I survived, but was transfigured into a German Shepherd. Thinking back, I probably wouldn’t have minded. I made a point of going through the first read without knowing any of the possible outcomes. After that though, I would inevitably flip back and forth through the book to see every possible outcome from every possible decision tree. In that spirit, let’s take a look at the possible outcomes President Biden’s healthcare agenda will face, come January 20.
The big turning point for his potential endings will be this Tuesday, with the runoff election for two Senate seats in the Georgia. Control of the Senate hinges on whether those seats remain in Republican control, and control of the Senate will largely dictate the possible avenues that remain open to the Biden Administration. During his campaign, the president-elect espoused a vision of building on the Affordable Care Act. He took care to steer clear of going so far as to embrace Medicare for all, and by comparison his approach looks far less radical. Rather than creating a single payer system, among other things, Bidencare would add a public option that could theoretically bring coverage to millions more Americans and perhaps lower premiums for those who already have coverage. If passed, the big shake ups would come from large insurers having to compete with a large, Medicare-like payer. That’s a big “if” though – without a Democratically controlled Senate there’s almost no chance the Biden plan would make it past the Grim Reaper of Capitol Hill.
So if Democrats don’t win both of the Peach State’s Senate seats this week Bidencare may be dead on arrival. Even with both seats the Senate would still be split 50-50. In which case Kamala Harris might find herself one of the busiest vice presidents in recent memory, taking charge in the Senate chamber as the perennial tiebreaker – a muscle Joe Biden never had the opportunity to flex during his time as Veep.
But the story won’t simply end there. We simply turn in our books to the executive authority ending. The Biden administration would still have the authority to make a number of changes without the help of Congress. Given the state of the pandemic (the U.K. is locking down again as we speak), President Biden could invoke emergency powers to provide greater subsidies, extended open enrollment periods, and reinstate marketing and outreach funds for purchasing plans on the Exchange. The President would also likely renew the declarations of COVID-19 as both a national emergency and a public health emergency, granting his fledgling administration with greater flexibility under federal regulations.
We would also likely see the United States walk back its withdrawal from the World Health Organization, reinstate COVID-19 briefings with scientists and health experts front and center, and push for a more comprehensive program to test, track, and vaccinate the public against the virus. Through executive actions, President Biden would also be able to simply reverse a number of actions taken by President Trump. He could reinstate limitations on short-term plans, lift limits on reproductive health programs, or revise regulations allowing more employers to refuse to cover contraceptives. He may also re-tighten limitations on when association health plans may be considered single-employer plans, and would likely revise the recent Section 1557 regulations.
What I know for certain is that we can expect the Biden administration to unveil big developments in the healthcare narrative over the coming months. As for which page we flip to next? That’s up for Georgia to decide.
In this episode of the Empowering Plans Podcast, Brady Bizarro is joined by a new face at Phia, Mitch Hilbert. Listen in as Brady and Mitch discuss how balance billing has been on an uptick during COVID, and how patients can possibly prevent this from occurring. Is Congress doing anything? What can we expect in the near future? Find out in our latest Empowering Plans Podcast.
By: Ron E. Peck
As a member of the health benefits community, I – like many of you – have heard about the proposed “No Surprises Act.” Many representatives of our health insurance and benefits community have reached out to me asking whether this “new law” will make balance billing “illegal,” and thus enable plans to leave their networks behind and pay claims solely based upon a Reference Based Pricing (“RBP”) methodology.
Before we dive into what the No Surprises Act is (and isn’t), let’s first – as of the time this missive is being drafted – recognize that it is presently “a bipartisan, bicameral deal in principle.”1 The “Committee leaders” are on record as having said that they “… look forward to continuing to work together to finalize and attach this important new patient protection to the end-of-year funding package,” and that they are “… hopeful this legislation will be signed into law…” Despite Congress’ vote to pass the bill, which includes the No Surprises Act, unless and until it is signed into law by the President, it isn’t a law of the land (yet).
A wise person plans for anything and everything, however, so let’s proceed under the assumption that this “deal” will in fact become law. The question (then) is whether, as mentioned above, the No Surprises Act outlaws balance billing. The answer is no; not even close.
The name of the proposed law is literally the no “surprises” act, and the above mentioned Committee leaders specifically state that, “Patients should not be penalized with these outrageous bills simply because they were rushed to an out-of-network hospital or unknowingly treated by an out-of-network provider at an in-network facility.”
This proposal relates solely to “surprise” balance bills.
One trend, seen from both government and media, is to confuse the term “balance billing” with the more specific term, “surprise” balance billing. In a nutshell, every brown squirrel is a squirrel, but not every squirrel is a brown squirrel. Similarly, every surprise balance bill is a balance bill, but not every balance bill is a surprise balance bill. A surprise balance bill is an amount submitted to a patient for payment that represents the difference between what a health plan paid, and the amount a provider charged for out of network (“OON”) services, provided in response to an emergency, where the patient didn’t choose the provider (nor did they have the ability to choose). Alternatively, a surprise balance bill is an amount submitted to a patient for payment that represents the difference between what a health plan paid, and the amount an OON provider charged when the patient treated at an “in network” (“IN”) facility, but a specific healthcare professional at the facility – that provided services to the patient – is independently OON. When a plan pays a usual and customary or “RBP” rate (often a percent of Medicare, or some other objective pricing metric) to a non-contracted provider, and the provider subsequently seeks payment from the patient of an amount that is in excess of the maximum allowable amount paid by the plan, this is balance billing. If the scenario doesn’t fit into the one of the two definitions explained above, then that balance bill is not a surprise balance bill, and – for the time being – the “No Surprises Act” is moot.
Further complicating the situation, most RBP plans do not utilize any network at all. This in turn nullifies one, if not both, of the scenarios that give rise to a “surprise” balance bill.
Specifically, when there is no network, a patient cannot find themselves in a situation where they visit an IN facility, only to have an OON provider provide services. This is because there are no IN facilities at all.
Further, depending upon how lawmakers interpret the interplay between the proposed rules and emergency services, it may be that an RBP plan will not benefit from protections afforded to patients in response to “emergency” situations either. Recall that the rule, and definition of surprise balance billing, envisions a scenario where a patient is whisked away to an OON provider in an emergency situation. The theory is that the patient “would have chosen” an IN provider had they had the chance. Yet, with an RBP plan that has no network at all, the patient could not have chosen an IN facility – emergency or not. In other words, with an RBP plan that has no network at all, the fact that the need was urgent (an emergency) has no impact on whether the patient is treated at an OON facility.
Benefit plans that do utilize networks should pay close attention because this proposal will impact them. Additionally, despite the above, even RBP plans and plans that don’t use a network should also pay attention – not because the proposal will impact them (it won’t), but because the way with which the rule addresses surprise balance bills may be a glimpse into the future, and a hint as to how lawmakers would seek to deal with all balance bills – not just surprise balance bills.
With this in mind, one item that should cause payers to tremble is the fact that, in direct opposition to the philosophy underpinning RBP, the “No Surprise Act” does not reference any objective payment standard. In other words, there is no universally agreed upon standard the parties can use in determining a fair payment.
The initial hope is that payers and providers will try to resolve payment disputes on their own. This initial “step” in the process, heralded as a novel step forward, does nothing more than document what most payers are already trying to do and have been trying to do for some time. When a patient is balance billed, a benefit plan rarely ignores their plight, and already seeks to resolve the matter with the provider – despite the plan not “technically” having an obligation to pay anything more.
Herein lies my concern – when the provider has a right to pursue payment from a patient (balance bill), and a payer has a right to cap what they will pay, both parties have something the other wants. The provider wants to be paid promptly, by the plan (whose pockets are far deeper than the patient’s). The provider recognizes that they aren’t guaranteed payment from the patient, and thus they are incentivized to work with the plan – applying the old adage that “a bird in the hand is worth two in the bush.” The plan, meanwhile, wants to protect their plan member from balance billing. Thus, even though they have paid all they are required to pay, the plan is compelled to pay more to protect the plan member. As a result, as mentioned above, both parties have something the other wants, and have a reason to negotiate in good faith.
In a new world, where the plan will be required to pay more – either a smaller amount proposed by the plan, a larger amount proposed by the provider, or some negotiated amount in between – the “threat” of the plan walking away without paying anything additional (a right the plan presently has) is stripped away, giving the provider more negotiation power and the plan less power than is presently the case. For this reason, the proposed rule hurts rather than helps negotiation efforts.
How could this be allowed to happen? As one reviews the proposed rule, one realizes that certain assumptions are in play. First, that benefit plans universally underpay claims when they are OON. Second, that benefit plans will never negotiate or pay anything additional when a participant is balance billed. As such, a law is required that will scrutinize what the plan paid and will force the plan to pay more.
For plans that already pay an objectively fair amount for OON claims, and already engage in good faith negotiations to protect patients from balance bills, these assumptions should be offensive, and the resultant rule should horrify.
Further worrisome is the so-called arbitration that ensues if a negotiation fails. The style of arbitration is “baseball arbitration;” a process where the arbiter is stripped of their power to steer the parties toward a middle ground and is instead forced to pick one of two amounts – one proposed by each party. As a result, benefit plans are cautioned against offering a too-small amount (including nothing additional), even if it seems fair to them, for fear of offending the arbiter and losing before they even begin. Of course, the counterpoint to that is that one does not negotiate against themselves. Many will not want to offer a too high amount, for fear that they will call their original payment (and logic behind the payment) into question, as well as embolden providers to increase their rates in response.
This, then, leads to another concern. If payers will be forced to pay “something” additional, why should providers avoid increasing their rates?
All involved in this proposal explicitly agree that this process is more favorable to providers. It’s why they supposedly added so-called “guardrails” to help ensure that the arbitration process is not abused.
First, payers and providers must engage in 30 days of negotiations, prior to requesting arbitration within 48 hours of the final day’s passage. This supposed guardrail only benefits providers. Presently, “pre-rule,” plans that have paid the maximum amount according to their controlling document seek only to negotiate to protect their plan member from balance billing. They, until now, gained nothing from paying more. Providers, on the other hand, are seeking financial gain. Prior to this rule, the threat that the plan could walk away, and the provider could be forced to pursue the patient – and likely get nothing additional – was an incentive to negotiate in good faith. Now, with the arbitration “light” shining at the end of the 30 day “tunnel,” providers will demand 100% of billed charges, refuse to negotiate, and simply await arbitration – knowing that they will either be rewarded with between a little more and a lot more payment from the plan. At best, they can assert a right to 100% of billed charges and win that amount in arbitration. At worst, they will get an amount the plan proposes (which is still more than the plan’s original payment – and thus more than the provider could potentially expect to get – should negotiations fail – pre-rule change). In other words, in a world where payers will be forced to pay more, and providers are not punished for charging excessive amounts, there is no downside to charging more, ignoring negotiations, and waiting for arbitration.
A rule that some say will prevent the overuse of the arbitration process is that the losing party will be responsible for paying the administrative costs of arbitration. Of course, those in our industry recognize that – for the reasons explained above – even if the provider loses (and is forced to pay the costs of arbitration) the additional payment from the plan of the lesser amount presented by the plan plus the already marked up rates initially paid by the plan, will outweigh the occasional loss and corresponding administrative costs.
Arbitrators, meanwhile, have the flexibility to consider a range of factors, but unfortunately – none of those factors are objective. They will be forced to limit their examination to only factors raised by the parties, and – significantly – not what the provider usually accepts from other payers. Additionally, the arbitrator is not supposed to review the billed charges (the chargemaster rate), but – assuming the provider is seeking payment of their charges in full via arbitration – that limitation is irrelevant.
Optional factors that an arbitrator could consider include, among others, the level of training or experience of the provider or facility, quality and outcomes measurements of the provider or facility, market share held by the out-of-network health care provider or facility, or by the plan in the geographic region, patient acuity and complexity of services provided, and teaching status, case mix, and scope of services of the facility. We question whether the payer will have an opportunity to challenge these metrics, or – as it appears to be presented – whether this is simply an open invitation for the provider to justify their demands.
Additional factors that the arbitrator may consider, and which are both beneficial to payers as well as uniquely worrisome, are any good faith efforts by the provider to join the plan’s network, past contracted rates, and the median in-network rate paid by the plan.
On the positive side, this will hopefully prevent the billed charges from being deemed the “starting point” or misrepresented as what is “usually paid” by benefit plans. Generally speaking, States that have implemented regulations limiting surprise balance bills that take such median rates into consideration generally see smaller amounts being paid than in States that do not take median rates into consideration.
On the flip side, knowing this information may be used against them in the future, will providers seek to contract for more with networks, to avoid creating a lower floor should they be forced to fight for OON payments at a later date? As for plans that do not even have a network, such as an RBP plan, how will these metrics apply to them?
This focus on networks, as well as in and out of network status, is a red herring. No payer should be forced to pay an abusive amount because they did or didn’t lock themselves into a contract at some earlier date, or with someone else. Each service provided by a provider should entitle that provider to fair compensation. If, four years prior, I agreed to pay $100,000 for an automobile that had a sticker price of $30,000, that mistake should not doom me to a lifetime of overpayments. If I paid $100,000 for a car worth $30,000, my wife shouldn’t be forced to do the same when she is purchasing a car. We should be allowed to pay a fair price for the service we are purchasing – in a vacuum and based solely on the value of that service, and that service alone.
“As we have stated many times before, the AMA strongly supports protecting patients from the financial impact of unanticipated medical bills that arise when patients reasonably believe that the care they received would be covered by their health insurer, but it was not because their insurer did not have an adequate network of contracted physicians to meet their needs,” AMA Executive Vice President and CEO James L. Madara, MD, wrote in a letter to congressional leaders.2
This statement from the American Medical Association’s leadership exposes two worrisome philosophies. First, that it is reasonable and appropriate to expect benefit plans to agree, via contract, to pay a provider whatever that provider wants – regardless of how excessive or abusive those prices may be. Second, that benefit plans should be forced to create and expand networks until they have no bargaining power and thus cannot exercise any cost controls whatsoever. I would ask Mr. Madara what he believes constitutes an “adequate” network. 25% of providers? 50%? 100% of providers? As that network grows, in-network status loses its exclusivity, and steerage of plan participants is spread, thinning the number of patients visiting each provider and lessening the value of in-network status for the providers. This in turn justifies the providers demanding more payment, and lesser discounts.
This philosophy, shared by the AMA and providers alike, exposes a baseline assumption that has become prevalent in our nation, and serves as a foundation for a flawed system. No other type of insurance is “forced” to contract with providers. Whether it be homeowner’s insurance, auto insurance, or any other form of insurance – insurance pays the fair value of the loss, and the objectively reasonable cost of repair or replacement. Yet, here we see the American Medical Association’s leadership stating that benefit plans should be punished for not contracting with providers, before a service is even provided, and failing to agree to pay whatever the provider chooses to charge when the time comes. Imagine if your auto insurance carrier was forced to contract with every auto manufacturer, agreeing to pay whatever the car maker charges at the time an insured needs a new car, without knowing what those prices will look like at the time the contract is signed. Imagine how automobile manufacturers could and would abuse that one-sided deal, and what that would subsequently do to your premiums.
The bottom line? With this new rule, providers are not punished for failing to contract with payers. Payers are punished for not contracting with providers. This puts all of the negotiation power in the hands of the provider. They know they can leave the “networking table” without a deal and collect their lump of flesh later. The payer, however, now is desperate to get a contract signed – and will sign a deal, no matter how abusive – to avoid the punishments they will suffer when they dare to allow a provider to be OON.
Before this review can be concluded, it is important to recognize that this assessment has been mostly negative. Hopefully you will forgive the author his gloomy tone. Many people see that surprise balance billing is being identified as an issue – and that, in and of itself, is a good thing. Unfortunately, the approach presented by the No Surprises Act minimizes the importance of examining objective metrics, is over reliant upon networks, and ignores amounts providers accept as “payment in full” from other payers – including Medicare and Medicaid, as well as actual cost to charge ratios. Rather than drill down to the question of what constitutes “fair” compensation, the process will instead ask what constitutes the “most common” compensation. Looking at the current state of the healthcare industry, one would be justified in expressing concern over future dependence upon past “averages.”
Hopefully arbitration won’t take place in a vacuum, despite the analysis above. Furthermore, there are other reasons for optimism. Much of the proposal depends upon future rulemaking. There is an opportunity to further define how the rule will be applied through the regulatory process. Stakeholders are encouraged to analyze the rule, contemplate how it will impact them, and propose solutions to shift the end result to a more equitable conclusion. This is not the end, but rather a foot in the door.
Consider also the inclusion of air ambulance claims. For too long this subset of healthcare has been allowed to operate without limitation and gotten away with unfettered billing practices. By being included in this proposal, we are turning the corner and taking one step in the right direction.
Lastly, while the rule isn’t perfect, it does also require providers to exercise a new level of transparency – notifying patients when they may be treated by an out of network provider, and requiring the use of a waiver that is (hopefully) more robust than the traditional intake forms signed by patients today.
Thus, in closing, while the No Surprises Act is far from perfect, there exists an opportunity to adjust it through the regulatory process and it shines a light on some issues that have been hidden for too long.
1. https://www.help.senate.gov/chair/newsroom/press/congressional-committee-leaders-announce-surprise-billing-agreement
2. https://www.ama-assn.org/delivering-care/patient-support-advocacy/proposed-no-surprises-act-favors-commercial-health-plans