For Your Benefit Newsletter, April 2022 – Employment and HR & More News Here – Upjobsnews

HHS Updates and Expands Women’s Preventive Service
Guidelines

The Department of Health and Human Services (HHS) announced
earlier this year that it adopted recommended changes to the
Women’s Preventive Service Guidelines. These Guidelines
determine what preventive care needs must be covered by insurers
and group health plans—without cost sharing with the
patient— under the Affordable Care Act (ACA).

Working under HHS, the Health Resources and Services
Administration (HRSA) reviewed the Guidelines with an eye toward
“the unique health needs of women across their
lifespan.” Preventive care until now has included services
such as mammograms, cervical cancer screenings and prenatal care.
The updated Guidelines include the following:

• obesity prevention counseling for women ages 40 to 60;




• access to double electric breast pumps and breast milk storage
  supplies, in addition to the current lactation support
  services;




• contraceptive care, including counseling services and access to
  the “full range” of contraceptives, planning practices
  and sterilization procedures in the FDA’s Birth Control
  Guide;




• updated risk factors in counseling for sexually transmitted
  infections;




• screening for HIV to begin at ages 13 to 15; and




• expanded well-woman preventive care to include potentially
  multiple visits to obtain all necessary services.

These Guidelines, which will affect the coverage of millions of
women who have private health insurance regulated by the ACA, are
generally effective with respect to plan years beginning in 2023.
Therefore, an employer-sponsored plan subject to these requirements
which has a plan year that coincides with the calendar year must
begin covering these expanded preventive care benefits with no
cost-sharing as of Jan. 1, 2023.

State Automatic Enrollment IRA Laws Get Green Light as Supreme
Court Refuses to Hear ERISA Preemption Challenge to
California’s Auto-Enroll IRA Law

On Feb. 28, 2022, the United States Supreme Court declined to
accept an appeal of a lawsuit involving the CalSavers Retirement
Savings Program. With that decision, California’s auto-enroll
individual retirement account (IRA) law remains in effect, and
similar programs enacted in other states and by local governmental
entities may also survive challenges based on preemption by the
Employee Retirement Income Security Act (ERISA).

CalSavers is California’s mandated auto-enrollment,
payroll deduction IRA program that requires private-sector
employers that don’t otherwise provide their employees with a
retirement plan option to automatically withhold limited
contributions from employees’ pay. The salary deferrals are
contributed to IRAs managed by the CalSavers Program. An
employer’s only involvement is to withhold the contributions
from the pay of employees who do not affirmatively opt out.

The Howard Jarvis Taxpayers Association (HJTA) challenged the
law on the basis that the law is preempted by ERISA. CalSavers is
an opt-out program, as opposed to an “opt-in” or
voluntary election. HJTA argued that requiring participants to
affirmatively opt out results in the program failing to be
“completely voluntary,” causing an ERISA exemption to
be unavailable.

The District Court for the Eastern District of California found
that the IRA program sponsored by CalSavers does not qualify as an
employee benefit plan under ERISA because it is not maintained by
an employer. In addition, since it does not impose any reporting,
administration or other plan-related burdens on employers, the
court found that the program does not “relate to” an
employee benefit plan and is therefore exempt from ERISA. On May 6,
2021, the United States Court of Appeals for the Ninth Circuit
upheld the district court’s dismissal of the challenge to the
law based on ERISA preemption. HJTA petitioned the U.S. Supreme
Court for review, and the Supreme Court declined. Therefore, the
law remains valid and cannot be challenged again in the Ninth
Circuit on the basis of ERISA preemption.

Employers in the 13 states and two cities with variations of
mandatory IRA laws who do not otherwise sponsor a retirement plan
should determine if compliance with these laws is required.
Currently, jurisdictions with these laws include: California,
Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts,
New Jersey, New Mexico, New York, Oregon, Vermont and Virginia. New
York City and Seattle established localized auto-enroll IRA
programs.

Federal Court Sets Aside Portion of Regulations Affecting
Payment of Out-of-Network Claims Under No Surprises Act

A federal district court in Texas has held that a portion of the
interim final regulations issued jointly by the United States
Departments of Treasury, Labor, and Health and Human Services (the
Agencies) pertaining to the arbitration process for air ambulance
payment disputes under the No Surprises Act (the Act) must be set
aside under the Administrative Procedures Act.

The Act was enacted on Dec. 27, 2020, to protect consumers from
large, unexpected medical bills from out-of-network-providers,
especially in emergency situations when consumers may not have a
choice between providers.¹ The Act specifically
addresses air ambulance claims as a particular area of concern
– the flights can be expensive, the providers are often
out-of-network, and thus individual patients are more likely to be
left with a large bill. The Act limits an individual
patient’s exposure to surprise air ambulance bills by placing
the onus for payment on health insurers and prohibiting air
ambulance providers from balance-billing. The Act creates a process
for health insurers and air ambulance providers to resolve payment
disputes. The final step of the process is independent dispute
resolution (IDR), in which each party submits a proposed payment
amount and explanation to an arbitrator, and the arbitrator must
select one of the two proposed payment amounts by considering
statutory factors: the “qualified payment amount” (the
median in-network rate for the services) as well as
“additional circumstances” (the provider’s
training and experience, market share, etc.).

The Act also required the Agencies to promulgate final interim
regulations for the IDR process within a year of the
legislation’s effective date. The Agencies issued the
regulations on Sept. 30, 2021 without providing a notice and
comment period. Under the regulations, the arbitrator “must
select the offer closest to the qualified payment amount”
unless a party submits credible information that the qualified
payment amount is materially different from the appropriate
out-of-network rate.

In Texas Med. Assoc. v. HHS, 2022 WL 542879 (E.D.
Tex. 2022), a medical provider association sued the Agencies under
the Administrative Procedure Act, a statute under which courts may
set aside agency actions that are not “in accordance with
law” and regulations that were issued without satisfying the
Administrative Procedure Act’s procedural requirements. The
plaintiffs argued that the final interim regulations were unlawful
because they conflicted with the Act’s statutory factors for
IDR by establishing a rebuttable presumption in favor of one factor
(the “qualified payment amount”) at the expense of
other factors (the “additional circumstances”). The
defendant Agencies argued that the overall statutory scheme of the
Act supported the regulations, and that the Agency’s
interpretation of the statute was entitled to deference under
the Chevron  doctrine. Under this doctrine of
statutory interpretation,  when a statute is
ambiguous, courts should defer to the interpretation of the agency
(or agencies) charged with administering the statute. The court,
however, held that the Act was not ambiguous with respect to the
IDR factors. Rather, the plain text of Act required arbitrators to
consider both the “qualified payment amount” and the
“additional circumstances” without giving one undue
weight over another. The court also held that regulations should be
set aside because the Agencies impermissibly bypassed the
Administrative Procedure Act’s notice-and-comment requirement
when issuing the regulations.

Arbitrators in current IDR proceedings now have less clear
guidance on how to resolve these disputes, and health plans likely
have greater exposure due to the invalidation of the qualifying
payment amount presumption.

Footnote

1 The Affordable Care Act requires health plans to
cover out-of-network emergency services at in-network cost-sharing.
However, previous to the No Surprises Act, the Affordable Care Act
did not protect individual patients from being billed directly by
providers for any amount not paid by insurance. This practice is
known as balance billing.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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