- On January 9, 2024
Every broker working with group health plans must be mindful of compliance requirements that impact employer-sponsored plans.
Here are ten compliance matters to keep in mind as you begin 2024.
#1. Online Plan Transparency Tools—Plans and issuers were required to develop an online price transparency tool by January 1, 2023, that provides plan participants with personalized cost estimates and other information for 500 commonly covered services. However, on January 1, 2024, all online tools needed to be expanded to include price estimates for ALL covered services on a standalone basis. Ensure every carrier and TPA you work with has updated their price transparency tools accordingly. Fully insured groups can transfer responsibility for creating and maintaining this tool to their carrier annually, so verify language to this effect is in all plan contracts. Self-funded and level-funded groups can delegate responsibility for this tool to the TPA or carrier providing administrative service support. Still, this transfer of responsibility should be delineated in the administrative services agreement. Also, these groups retain ultimate legal responsibility if the requirement is unmet.
#2. Telehealth Safe Harbor—The safe harbor allowing qualified high deductible health plans to offer first-dollar coverage of telehealth services without ruining HDHP members’ ability to make or receive pre-tax contributions into their health savings accounts (HSAs) only extends through December 31, 2024. This means calendar-year HDHP plans can continue to waive the deductible for telehealth services without causing members to lose HSA eligibility for the next plan year. However, since the relief only extends through the end of December, and there is no guaranteed extension since that would require Congressional action, non-calendar year groups must be mindful of offering to pay for telehealth visits before the deductible if they offer qualified high-deductible coverage. TPAs and carriers must also consider how to handle this issue relative to plan design and claims payments beyond December 31, 2024. Bottom line brokers—make sure any groups renewing after January 1 who offer HSA-qualified HDHPS understand the risk of covering telehealth before the deductible during the 2024 plan year. If any of your groups decide to risk it, consider all future legal and compliance updates about a potential telehealth safe harbor extension. If Congress does not act before next December, then make sure all those plans make benefit changes before the relief expires.
#3. ACA Reporting Statements—Last year, the IRS lowered the standard for mandatory electronic submission of reporting forms from 250 returns to 10 returns. Furthermore, when counting to ten, the IRS will aggregate all returns each employer files during the calendar year (ex., W-2, 1099, 1095, etc.) Put another way, due to this change, virtually every applicable large employer (ALE) or small-level-funded group that needs to send forms 1095 B or 1095 C to employees will now need to file their Forms 1094 and 1095 electronically with the IRS. Employers filing for the 2023 tax year (returns due in 2024) must engage with an ACA reporting vendor to conduct electronic filing or apply for a paper submission waiver due to undue hardship.
#4. Machine Readable Files for Rx Claims—As of January 1, 2023, all group plans and issuers had to make machine-readable data files of de-identified in-network and out-of-network claims payments available via a public website and keep that information up-to-date. New guidance from the Biden Administration indicates that plans must add a third machine-readable file to their online health cost transparency data arsenal early in 2024. This new file must contain prescription drug negotiated rates and historical cost data. Like the other machine-readable files, the data must be updated regularly. The exact due date for this requirement is still TBD, but the Administration could release it anytime. Brokers should check in with all carriers and TPAs they work with to ensure they and all associated PBMs are ready to post and maintain this data. Like the online price transparency tool requirement, fully insured groups can transfer responsibility for creating and maintaining this tool to their carrier annually via a written agreement, such as the plan contract. However, even though self-funded and level-funded groups can delegate responsibility for this tool to their TPA or the carrier providing administrative service support, they retain ultimate legal responsibility if the requirement is unmet. The transfer of responsibility for file creation and maintenance should be delineated in each self-funded and level-funded group’s administrative services agreement.
#5. Compensation Disclosure—The broker and consultant compensation disclosure requirements that took effect in 2022 have not disappeared. If you expect to receive at least $1,000 indirectly or directly from a group health plan subject to ERISA (including dental and vision plans), you must disclose your compensation to those groups for this year, too! The disclosure requirements apply to all contracts and arrangements for services entered, extended, or renewed on or after December 27, 2021.
#6. RxDC Reporting—The next round of RxDC reporting will be due on June 3, 2024, and that date will creep up on you and your groups faster than you’d like to think! This reporting describes the funding that flows in and out of group health plans for premiums and medical and prescription drug claims. While carriers, TPAs, and PBMs may all submit information on behalf of their group clients, they will need plan-specific information to complete the D-1 section of the reporting. Last year, many plans were willing to do the D-1 reporting for their group clients as long as they provided specified information by tight deadlines. Some carriers and TPAs placed the D-1 reporting responsibility on their group plans entirely. Since submitting the data was so cumbersome, many groups in this position had to rely on third-party vendors for assistance. For brokers, the responsible first step to help clients with reporting this year is to ascertain now what all carriers, TPAs, and PBMs you may work with will be handling RxDC reporting and if these vendors are willing to manage D-1 reporting for their clients, when groups will need to provide them with the applicable data.
#7. Mental Health Parity and Addiction Equity Act (MHPAEA) Compliance—The Consolidated Appropriations Act of 2021 (CAA 2021) requires all group health plans subject to the MHPAEA to complete and maintain detailed analyses of any of their plan’s non-quantitative treatment limitations (NQTLs). Further, all group plans should test their plan’s quantitative treatment limitations annually because the results will impact plan design. The Biden Administration has made MHPAEA enforcement its top group health plan compliance priority, so all fully insured groups and all level-funded and self-funded groups with more than 50 employees need to consider how they can document compliance. It’s important to note that the Administration is set to release brand new MHPAEA regulations this winter, and when those are finalized, they will contain essential compliance instructions. So, stay tuned!
#8. “Gag Clause” Prohibition—The CAA 2021 also prohibited “gag clauses” in health plan contracts. These contract terms restrict plans from providing cost or quality-of-care information to plan participants, accessing de-identified claims data, and sharing the information, per privacy regulations, with a business associate. All group health plans had to complete their first gag clause attestation by December 31, 2023, stating that they do not have any agreements that include these provisions, but this is an annual requirement. Fully insured plans must complete the attestation for their group clients, but level-funded and self-funded groups may have to attest themselves if their TPAs/carriers/PBMs do not do it for them. Like other CAA 2021 requirements, these groups ultimately retain liability for ensuring these attestations are completed, even if a plan vendor agrees to do the actual reporting for them. Brokers should determine now who will be doing the gag clause attestations for their clients by December 31, 2024. Also, each group should obtain and keep documentation from their plan vendors (TPAs/carriers/PBMs) indicating that any contracts they maintain for or enter into with the group’s health plan do not contain any prohibited gag clauses.
#9. Plan Year Dependent Reporting—Each year, many group health plans have to submit reports to the federal government, which have rolling due dates based on the group’s renewal date. All groups that offer prescription drug benefits and potentially cover or offer coverage to Medicare-eligible individuals need to provide certification to CMS noting if each prescription drug plan they offer does or does not cover as much as the average Medicare Part D Plan (information the group should be able to obtain from their PBM or carrier). This information is due on or before the 60th day of the plan year (or Friday, March 1, 2024, for January 1 groups). Every group’s due date will vary based on their renewal date. Further, groups that cover 100 or more people on the first day of their plan year must file Form 5500 with the DOL and IRS annually. This reporting gives the federal government information about the framework and financial status of the health plan, and reporting for the previous plan year is due on the last day of the seventh month following the start of the group plan year. So, for groups with a January 1 renewal, if the group had 100 or more people on the health plan on January 1, 2023, their 2023 Form 5500 filing will be due by July 31, 2024. Again, the due date of every applicable group will vary based on the first day of the plan year. A best practice for brokers is to set up a tracking and reminder system now for all your bigger groups and all plans that offer prescription drug benefits with their applicable reporting dates.
#10. Plan Documents and Notices— Employers sponsoring ERISA plans must distribute plan notices and documents to their plan participants. If you did not take care of this during open enrollment, there is no time like now! Documents each group may need to distribute include (1) the summary plan description (SPD); (2) the summaries of benefits and coverage (SBC) and the accompanying uniform plan term glossary; and key annual notices, including the WCRA, CHIPRA, privacy protections, creditable coverage, and grandfathered plan notices, if applicable.
As always, ExpressLink is here to help our broker partners with their group health plan compliance needs and responsibilities. Do not hesitate to reach out for assistance or with questions.