The Washington Report
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January 19, 2022
Note to Subscribers
Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline.
Judicial
Supreme Court Releases Decisions on Vaccine Mandates; Blocks Vaccine-or-Test Mandate for Private Employers but Allows Mandate for Federal Health Care Workers to Remain in Effect
On January 13, 2022, the Supreme Court released opinions on the challenges to the COVID-19 vaccine mandates. The Court issued a stay of the Occupational Safety and Health Administration’s (OSHA’s) vaccine-or-test requirement for private employers (NFIB v. OSHA) but allowed the Centers for Medicare & Medicaid Services (CMS) vaccination requirement for health care workers in facilities participating in Medicare and Medicaid programs to remain in place (Biden v. Missouri). Please see the Aon bulletin, Supremes Block OSHA Vax-or-Test Mandate for Private Employers but Allow CMS's Vax Mandate for Federal Health Care Workers in the Publications section of this newsletter.
The Supreme Court opinions are available here and here.
A Department of Labor news release (Statement From Secretary of Labor Marty Walsh on Supreme Court Ruling on OSHA Emergency Temporary Standard of Vaccination, Testing) is available here.
A Department of Health and Human Services news release (Statement from HHS Secretary Xavier Becerra on Supreme Court COVID-19 Vaccine Decisions) is available here.
A CMS news release (Statement by CMS Administrator Chiquita Brooks-LaSure On the U.S. Supreme Court’s Decision on Vaccine Requirements) is available here.
Health
HRSA Updates Affordable Care Act Preventive Health Care Guidelines for Women and Children; Releases ASPE Report
On January 11, 2022, the Department of Health and Human Services (HHS) announced that the Health Resources and Services Administration (HRSA) updated comprehensive preventive care and screening guidelines for women and infants, children, and adolescents. Under the Affordable Care Act, certain group health plans and insurance issuers must provide coverage with no out-of-pocket cost for preventive health services within these HRSA-supported comprehensive guidelines. Among a number of updates, the Women’s Preventive Services Guidelines require such group health plans and insurance plans to provide coverage without a copay or deductible for double electric breast pumps. Additionally, HHS released a new report (Access to Preventive Services without Cost-Sharing: Evidence from the Affordable Care Act), from the Office of the Assistant Secretary for Planning and Evaluation (ASPE) highlighting how the Affordable Care Act “has increased access to preventive care…including vaccinations, contraception, and cancer screening.”
HRSA also recently updated guidelines to the Bright Futures Program. The updates include adding universal screening for suicide risk to the current Depression Screening category for individuals ages 12 to 21 and new guidance for behavioral, social, and emotional screening.
The HHS news release is available here.
The Women’s Preventive Services Guidelines are available here.
The ASPE report, Access to Preventive Services without Cost-Sharing: Evidence from the Affordable Care Act is available here.
Information on the Bright Futures Program is available here.
Other HR/Employment
DOL Releases FAB on Minimum Wage EO 14026
On January 13, 2022, the Department of Labor’s (DOL’s) Wage and Hour Division published Field Assistance Bulletin (FAB) No. 2022-1 clarifying the requirements of Executive Order (EO) 14026 that increases the hourly minimum wage for certain federal contractors to $15 effective January 30, 2022.
The FAB identifies four categories of contracts covered by the EO:
- Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
- Service contracts covered by the Service Contract Act (SCA);
- Concessions contracts; and
- Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.
The FAB further identifies workers covered by the EO as:
- Workers whose wages under the contract are governed by the Fair Labor Standards Act (FLSA), SCA, or DBA; and
- Workers employed on or in connection with a covered contract.
FAB 2022-1 also explains the $15 minimum wage requirement for all contract workers and clarifies changes to minimum wage requirements for contract workers in tipped occupations and workers with disabilities employed on covered contracts under Section 14(c) of the FLSA.
FAB 2022-1 is available here.
EO 14026 is available here.
Aon Publications
Supremes Block OSHA Vax-or-Test Mandate for Private Employers but Allow CMS's Vax Mandate for Federal Health Care Workers
The United States Supreme Court on Thursday afternoon issued a split decision in the challenges to the federal government’s vaccine mandates, issuing a stay of the Occupational Safety and Health Administration (OSHA) vaccine-or-test requirement for private employers, but allowing the Centers for Medicare & Medicaid Services (CMS) vaccination requirement for health care workers in facilities participating in Medicare and Medicaid programs to remain in place while challenges to both mandates proceed. The decisions mean that, while the legal challenges proceed, the OSHA vaccine-or-test requirement for employers will not go into effect, but the CMS mandate for health care workers in Medicare and Medicaid facilities will remain in effect.
The Aon bulletin is available here.
Now Available: 2022 Aon Compliance Calendar: Significant Retirement and Health & Welfare Due Dates
Aon is pleased to present its 2022 Compliance Calendar to help plan sponsors identify significant compensation and benefit due dates for retirement and health and welfare plans. This Compliance Calendar includes relevant dates involving plan disclosures, contribution and distribution requirements, and various plan-related regulatory filings.
This Compliance Calendar assumes a plan administered on a calendar year basis by an employer with a calendar fiscal year. In general, the information for pension plans applies to single employer plans; other plans, such as multiemployer plans (e.g., Taft-Hartley plans) or government plans, may be subject to different requirements, and are not included. Additionally, certain compliance dates related to group health plan coverage or retiree prescription drug coverage have been included where applicable.
The Compliance Calendar is intended to alert the reader to some of the more significant dates for 2022 and is not intended to identify all compliance obligations or due dates.
The 2022 Aon Compliance Calendar: Significant Retirement and Health & Welfare Due Dates is available here.
Departments Require First-Dollar Coverage of OTC COVID-19 Tests
Employer group health plans and health insurance issuers must provide first-dollar coverage of over-the-counter (OTC) COVID-19 tests, regardless of an order or clinical assessment, starting January 15, 2022, according to guidance released by the U.S. Departments of Labor, Treasury, and Health and Human Services (the Departments). The guidance, issued as frequently asked questions, contains two safe harbors that plans can adopt to avoid enforcement actions, one covering delivery and pricing of the OTC COVID-19 tests, and one covering number and frequency of such tests.
This Aon bulletin discusses:
- First-dollar coverage of OTC COVID-19 tests without a clinical assessment;
- Safe harbor one: Plans cannot limit coverage to preferred pharmacies;
- Safe harbor two: Limits on number and frequency of OTC COVID-19 test purchases;
- Preventing fraud and abuse; and
- What employers should do now.
The Aon bulletin is available here.
DOL Announces Temporary Reasonable Good Faith Standard for Disclosures by Group Health Plan Service Providers
The United States Department of Labor (DOL) announced a temporary enforcement policy applying a reasonable good faith standard for disclosures required to be made by certain health plan service providers to plan fiduciaries under the Consolidated Appropriations Act of 2021.
The policy, announced in Field Assistance Bulletin No. 2021-03 on December 30, 2021, provides that a covered service provider will not be treated as having failed to make the required disclosures as long as the service provider makes disclosures in accordance with a reasonable good faith interpretation of the requirements. The Bulletin also provides additional guidance for plans and service providers on what constitutes reasonable good faith interpretations.
Employers who are group health plan fiduciaries should be receiving these disclosures from their covered service providers. If not, employers/plan fiduciaries should be prepared to ask their covered service providers for this information.
This bulletin discusses:
- The background to the disclosure rules;
- The DOL’s temporary enforcement policy; and
- The DOL’s guidance on reasonable, good faith interpretations.
The Aon bulletin is available here.
Medicare Part D Disclosure Reminder
This Aon bulletin is a reminder of an annual disclosure requirement applicable to most employers that provide prescription drug coverage to individuals who are Medicare Part D-eligible. This disclosure is not new and should have occurred each year since 2006. The disclosure applies regardless of whether an employer provides retiree prescription drug benefits.
For 2022 calendar year plans, the disclosure must occur no later than March 1, 2022. The annual disclosure must occur for any employer that provides prescription drug coverage to anyone who is Medicare Part D-eligible.
The Aon bulletin is available here.