Spring 2022 Legislative Recap

COVID-19 in 2022

HHS extended the Public Health Emergency for the eighth time effective January 16, 2022 for another 90 days. On February 18, President Biden stated the National Emergency will continue past March 1, 2022. As a reminder, several benefits items are tied to these respective emergency periods, such as the waiver of out of pocket costs for medically necessary COVID testing, and vaccinations.

EBSA Disaster Relief Notices 2020-1 and 2021-1 are still in effect, tolling several ERISA deadlines until the end of the National emergency period. As a reminder, this applies to COBRA election and payment deadlines, the ability of individuals to submit FSA claims from the prior year, filing for external review of an adverse benefit determination, and the HIPAA special enrollment window for mid year election changes on account of a HIPAA event .

Since January 15, health plans have been required to cover the full cost of over the counter (OTC) COVID-19 tests, when purchased for personal use (but not for ‘surveillance’ testing). Employees can purchase tests directly from the preferred provider network (determined by each carrier), or submit proof of purchase for a $12 reimbursement per test.

The Consolidated Appropriations Act of 2022 (CAA-22) was signed on March 15, and will avoid government shutdown through the fall. It also extends relief for HDHPs that waive deductible for telehealth services, while preserving HSA eligibility from April 1 2022 through December 31, 2022. There is a 3 month gap during which the 2021 relief expired, so plans were not able to offer telehealth without deductible from January 1, 2022 through March 31, 2022. Plans should be updated to reflect the current guidance.

New York employers must still offer 2 weeks (14 calendar days) of paid leave to any employees that test positive for COVID, or are under mandatory quarantine and cannot telework. This is available up to 3 times for the same employee.

California passed another COVID paid leave law for 2022, tracking the 2021 law in many ways. Up to 80 hours of paid time off, available in 2 ‘buckets’ of 40 hours, is required for employers with at least 26 employees located in California, and applies only to those employees physically working within the state.

DOL

The DOL continues to emphasize the importance of employer compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA). The 2021 Consolidated Appropriations Act required employers, beginning in February 2022, to produce a comparative analysis of any non quantitative treatment limitations (NQTLs) upon request by the DOL, IRS or HHS. Examples of common NQTLs include ‘fail first’ or step therapy protocols, referrals requirements, network tier designs, and exclusions based on failure to complete a course of treatment. Employers should be aware of this requirement and communicate with their carriers or ASO providers to obtain a complaint comparative analysis.

The Transparency in Coverage Rule issued in 2020 will be enforced beginning July 1, 2022. Under this rule all ‘issuers’ of health insurance will need to publish two ‘machine readable files’ listing the in-network rates of all covered services, and out-of-network amounts allowed for covered services. Employers with fully insured health plans will generally be able to rely on their carriers to produce and publish these files. Self insured clients can host their own files, or arrange to have their ASO providers assist.

SCOTUS

The 2022 retirement of Justice Breyer created a vacancy on the Supreme Court. President Biden nominated Judge Ketanji Brown Jackson on February 25, and she is expected to be confirmed following confirmation hearings currently in progress at the time of this writing.

No Surprises Act

The No Surprises Act (NSA) took effect for plan years beginning in 2022 to ban balance and surprise billing for patients enrolled in group health plans. In February, a Texas District court vacated the arbitration provision of the HHS regulations implementing the No Surprises Act, as well as the presumption that the entity mediating a billing dispute refer to a ‘qualifying payment amount’ in its decision. This is a set back for the Act’s effectiveness, but ultimately leaves much of the rule intact. We await the government’s appeal.

The Affordable Care Act

The PCORI Fee for 2022 will be $2.79 per covered life. This fee applies to self insured health plans, including HRAs and is payable via IRS Form 720 by July 31.

Several new health services for women and children have been added to the required list of preventive services covered without cost share, beginning with plan years in 2023. Self funded plans in particular should ensure they consult the current list (linked here) as their 2023 plan designs are drafted.

Employers with at least full time and equivalent employees in the prior calendar year  must offer minimum essential coverage to all full time employees that costs no more 9.61% of employee income in 2022.

 Two grounds for employer penalty

    The 4980H(A) :

2022: If Employer does not offer coverage to 95% of its full time employees, and one employee receives a subsidy to purchase insurance on the Health Exchange, the Employer is subject to a penalty equal to $2,750 x every full time employee (minus 30) 

2023 (*projected): If Employer does not offer coverage to 95% of its full time employees, and one employee receives a subsidy to purchase insurance on the Health Exchange, the Employer is subject to a penalty equal to $2,880* x every full time employee (minus 30) 

The 4980H(B):

2022: If employer offers coverage that is unaffordable (exceeds 9.61*% in 2022 of income using a safe harbor method) or doesn’t offer minimum value, and any employees qualify for a subsidy to purchase insurance on the Health Exchange, the employer is subject to a penalty equal to $4,120 x the number of full time employees that receive a subsidy to purchase insurance on the Health Exchange

2023 (*projected): If employer offers coverage that is unaffordable, or doesn’t offer minimum value, and any employees qualify for a subsidy to purchase insurance on the Health Exchange, the employer is subject to a penalty equal to $4,320* x the number of full time employees that receive a subsidy to purchase insurance on the Health Exchange.