The Washington Report
October 6, 2021
Departments Release FAQs About ACA Implementation Part 50, HIPAA, CARES Act Implementation
On October 4, 2021, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued Frequently Asked Questions (FAQs) regarding implementation of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), HIPAA, and the Affordable Care Act (ACA). The five FAQs specifically address rapid coverage of preventive services for COVID-19 and HIPAA nondiscrimination and wellness programs. The FAQs are listed below:
- Q1: How does the December 12, 2020, Advisory Committee on Immunization Practices recommendation impact when plans and issuers must provide coverage without cost-sharing for COVID-19 vaccines under Section 3203 of the CARES Act and its implementing regulations?
- Q2: Does FAQs Part 44, Q8, continue to apply?
- Q3: May a group health plan (or health insurance issuer offering coverage in connection with a group health plan) offer participants in the plan a premium discount for receiving a COVID-19 vaccination?
- Q4: May a group health plan or health insurance issuer condition eligibility for benefits or coverage for otherwise covered items or services to treat COVID-19 on participants, beneficiaries, or enrollees being vaccinated?
- Q5: How are premium discounts and surcharges for receiving or not receiving the COVID19 vaccination, respectively, treated for purposes of determining affordability of coverage with respect to the employer shared responsibility payment under Section 4980H(b) of the Code?
For additional information, please see the Aon bulletin Departments Say HIPAA Permits Group Health Plan Surcharges, Discounts on COVID-19 Vaccinations, available in the Publications section of this newsletter.
The FAQs are available here.
Additional Guidance on Surprise Billing Issued
On September 30, 2021, the Departments issued interim final regulations with comment period to continue implementation of the No Surprises Act, a consumer protection law that helps curb the practice known as “surprise billing” for medical care. The interim final regulations detail the federal arbitration process (also known as the independent dispute resolution (IDR) process) that providers, facilities or providers of air ambulance services, and health plans or issuers will use to determine final payment beyond allowable patient cost-sharing for certain out-of-network health care services in situations where the No Surprises Act prohibits surprise billing. The regulations also require that certain providers and facilities provide a good faith estimate of the charges to uninsured (or self-pay) individuals so they can know what costs to expect when seeking health care.
The latest guidance is the third in a series that the Departments are using to implement the No Surprises Act. In July 2021, President Biden issued an Executive Order (EO) (Promoting Competition in the American Economy) directing Health and Human Services to prioritize and implement the law. The Departments also issued an interim final rule focusing on consumer protections against surprise billing this same month. In September, the Departments published a proposed rule to help collect data on the air ambulance provider industry.
The interim final regulations issued jointly by the Departments are generally applicable for plan or policy years beginning on or after January 1, 2022. However, other provisions in the interim final regulations have an applicability date of October 7, 2021. Please refer to the regulations for specific details and guidance. Comments on the interim final regulations are due by December 6, 2021.
On the same day the Departments released the interim final regulations, the Treasury and Internal Revenue Service (IRS) issued proposed regulations that provide for a federal IDR process to permit group health plans and nonparticipating providers, facilities, and providers of air ambulance services to determine the out-of-network rate for items and services that are emergency services, nonemergency services furnished by nonparticipating providers at participating facilities, and air ambulance services furnished by nonparticipating providers of air ambulance services, under certain circumstances. It is proposed that these regulations apply for plan years beginning on or after January 1, 2022. Comments on the proposed regulations are due by December 6, 2021.
The news release is available here.
The interim final regulations (released by the Departments) are available here.
The Treasury and IRS proposed regulations are available here.
A Fact Sheet on What You Need to Know about the Biden-Harris Administration’s Actions to Prevent Surprise Billing (September 2021) is available here.
A Fact Sheet on the Requirements Related to Surprise Billing; Part II Interim Final Rule with Comment Period (September 2021) is available here.
The Calendar Year 2022 Federal IDR Process Fee Guidance is available here.
The information collection documents are available here.
The EO on Promoting Competition in the American Economy (July 2021) is available here.
A Fact Sheet on Requirements Related to Surprise Billing; Part I Interim Final Rule with Comment Period (July 2021) is available here.
A Fact Sheet (September 2021) on the proposed rule to help collect data on the air ambulance provider industry is available here.
OCR Publishes Guidance on HIPAA, COVID-19 Vaccinations, and the Workplace; Reminds Public That HIPAA Does Not Apply to Employers or Employment Records
On September 30, 2021, the Department of Health and Human Services' Office for Civil Rights (OCR) issued guidance to help the public understand when the HIPAA Privacy Rule applies to disclosures and requests for information about whether a person has received a COVID-19 vaccine. “The guidance reminds the public that the HIPAA Privacy Rule does not apply to employers or employment records. This is because the HIPAA Privacy Rule only applies to HIPAA covered entities (health plans, health care clearinghouses, and health care providers that conduct standard electronic transactions), and, in some cases, to their business associates.” This latest guidance addresses common workplace scenarios and answers questions about whether and how the HIPAA Privacy Rule applies.
The news release is available here.
The guidance on HIPAA, COVID-19 Vaccinations, and the Workplace is available here.
CMS Releases 2022 Premiums and Cost-Sharing Information for Medicare Advantage and Prescription Drug Plans
On September 30, 2021, the Centers for Medicare & Medicaid Services (CMS) released the 2022 premiums, deductibles, and other key information for Medicare Advantage and Part D prescription drug plans. The average premium for Medicare Advantage plans will be lower in 2022 at $19 per month, compared to $21.22 in 2021, while projected enrollment continues to increase. As previously announced, the average 2022 premium for Part D coverage will be $33 per month, compared to $31.47 in 2021.
The news release is available here.
The premiums and costs of the 2022 Medicare Advantage and Part D plans are available here.
State-by-state information on Medicare Advantage and Part D in 2022 is available here.
Information on the Part D Senior Savings Model, including plan participation for 2022, is available here.
Additional information on the Medicare Advantage Value-Based Insurance Design Model is available here.
Departments Say HIPAA Permits Group Health Plan Surcharges, Discounts on COVID-19 Vaccinations
The U.S. Departments of Labor, Treasury, and Health and Human Services (the Departments) issued frequently asked questions providing guidance for employer group health plans on practices regarding COVID-19 treatments and services.
Most significantly for employers contemplating vaccination incentives, the Departments stated that an employer group health plan may offer participants a premium discount — or, alternatively, impose a premium surcharge — regarding COVID-19 vaccinations, if the discount or surcharge meets the activity-based wellness program rules under HIPAA.
The Aon bulletin is available here.
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