News

"Covered Entities will need to appoint a Section 1557 coordinator, implement policies and procedures, provide training, distribute and post notices containing specified content and provide auxiliary aids and services to individuals with disabilities and to those with limited English proficiency. The Final Rule will become effective on July 5, 2024, but many of the requirements imposed on Covered Entities have delayed compliance dates[.]"

"Regulations implementing Section 1557 have been the subject of Presidential administration tug-of-war since their original 2016 issuance.... The  Final Rule  restores Section 1557 protections against discrimination based on sexual orientation, gender identity, and disability, as well as religious objections. It also expands the reach of the Rule to Part B Medicare providers, private health insurance plans and the use of AI patient decision-making tools."

"If the entity administering the HSA is not a local financial institution, then the governing documents for the HSA, but not those of the HDHP, would need to be filed with Hacienda to obtain an administrative determination confirming that, both in its terms and operation, the HSA meets the requirements of PRIRC Section 1081.04.... [The] local limits are comparable to the U.S. 2012 limits. Since the limits are established by PRIRC Section 1081.04, rather than through Hacienda's administrative guidance, and are not indexed for inflation, Hacienda cannot approve a higher limit."

"The main exception to the HDHP minimum deductible requirement is the ability of an HDHP to provide first-dollar coverage (i.e., not subject to the deductible) for preventive care without affecting HSA eligibility. [1] First dollar telehealth coverage expiration for plan years beginning on or after January 1, 2025.... [2] First-dollar Covid testing/treatment expiration for plan years ending on or after January 1, 2025."

"According to the DOL, the 2018 AHP Rule was a significant departure from the DOL's longstanding pre-rule guidance on the definition of 'employer' under ERISA and substantially weakened the DOL's traditional criteria in a manner that would have enabled the creation of commercial AHPs functioning effectively as health insurance issuers."

"The Eleventh Circuit also concluded that the county, which had been delegated the functions of administering and providing health insurance for a county sheriff's office employees, was an employer for Title VII purposes.... Much of the recent litigation over health plan exclusions for gender-affirming care is being brought under ACA Section 1557.... Title VII can also be the basis for a successful challenge to such exclusions." [ Lange v. Houston County, Georgia ., No. 22-13626 (11th Cir. May 13, 2024)]

"New Section 1557 regulations published on May 6, 2024, which go into effect August 6, 2024, restore some repealed 2016 provisions and add provisions to enhance nondiscrimination requirements to which covered healthcare providers must adhere."

"A federal appeals court has upheld a lower court's ruling that the Houston County, Ga., Sheriff's Office violated antidiscrimination law by denying transition-related health care to a deputy.... It is only the second decision by a federal appellate court affirming that it is unlawful for an employer to discriminate against transgender people in an employee health plan ... [and] is immediately binding on employers in Georgia, Florida, and Alabama, the states covered by the 11th Circuit[.]" [ Lange v. Houston County, Georgia ., No. 22-13626 (11th Cir. May 13, 2024)]

"According to data from benefits provider Enthea ... 86% of the employees who accessed ketamine therapy saw an improvement with PTSD symptoms. 67% saw an improvement in depressive disorders and 65% felt better in dealing with their anxiety. 65% saw an improvement in dealing with a generalized anxiety disorder."

"Given the additional difficulty of satisfying the creditable coverage requirements, the simplified method will be an important tool for employer plans in 2025.... The simplified method provides two potential paths for determining creditable coverage ... [It] is likely less expensive than an actuarial determination, however this does not mean it is actually simple."

"With a new Complaint to be filed, in some sense, the case is starting all over again. But, there is some learning from the Defendants' letter and their Memorandum on dismissal that are worth a review, and that Plaintiff is no doubt taking into account for purposes of a First Amended Complaint." [Lewandowski v. Johnson & Johnson, No. 24-0671 (D.N.J. complaint filed Feb. 5, 2024)]

10 pages. "61% of U.S. workers reported at least one symptom of a mental health condition in 2023. 1 in 4 organizations (25%) report having a formal strategy for workforce mental health.... A comprehensive strategy includes elements aimed at: [1] Culture; ... [2] Services ... [3] Work conditions ... [4] Connection ... [5] Data insights."

"HHS is extending policies related to the treatment of telehealth and audio-only services that were put in place in response to the increased need to expand the use of telehealth services during the COVID-19 public health emergency for the 2020 through 20231 benefit years to the 2024 benefit year and beyond. HHS is extending these policies for purposes of the HHS-operated risk adjustment program under section 1343 of the [ACA] due to changes in patterns of care and higher levels of use of telehealth and audio-only services that can be expected to continue into future benefit years."

"In 2025, tax-deductible/tax-free HSA contribution limits, HDHP in-network out-of-pocket maximums and HDHP minimum annual deductibles will rise from 2024 levels for both self-only and family coverage levels. The HSA catch-up contribution limit is set by statute and hasn't changed since 2009. The 2025 maximum annual employer contribution for an excepted-benefit HRA will increase[.]"

"A former New York City assistant district attorney and his husband are suing the city, claiming its health plan discriminates against gay male couples by denying them coverage of in vitro fertilization benefits.... The lawsuit raises bigger questions about who qualifies for fertility-related care under employer-sponsored plans ... The complaint seeks an injunction to end the city's current policy that restricts coverage of IVF treatment for same-sex male couples." [Briskin v. City of New York, No. 24-3557 (S.D.N.Y. complaint filed May 9, 2024)]

"[T]he preamble to the Final Rule clarifies that the provisions would not apply to employers as it relates to the provision of employee health benefits.... In addition, the preamble to the Final Rule clarifies that even if a plan sponsor or a third-party administrator of a group health plan receives Federal financial assistance, such assistance does not make the group health plan a 'covered entity'."

"[B]ecause most insurers will be covered entities, [the authors] expect they (and their TPA and PBM counterparts) will request that plan sponsors remove potentially discriminatory plan designs to avoid liability. Insurers, TPAs, and PBMs can be held responsible for discriminatory plan designs that they originated or controlled. Conversely, when a plan sponsor controls a discriminatory plan design, the plan sponsor can be held liable if it is a Section 1557 covered entity."

"All of the dollar limits currently in effect for 2024 will change for 2025, with the exception of ... [the] HSA catch-up contribution for individuals ages 55 and older ...[A table] compares the applicable dollar limits for HSAs, HDHPs and excepted benefit HRAs for 2024 and 2025."

"Given employer preferences for contracting flexibility and the importance of gainsharing contracts in reducing prescription drug spending, legislative proposals aimed at banning either spread pricing in the commercial market or variable rebate contracts restrict PBMs' ability to work with employers to design the plan that is right for their employees. With increased pricing transparency to plan sponsors, employers will be well-positioned to negotiate contract terms and select models that reduce prescription drug spending."

"For calendar year 2025, the annual limitation on deductions under Section 223(b)(2)(A) for an individual with self-only coverage under a high deductible health plan is $4,300 ... [and] for an individual with family coverage under a high deductible health plan is $8,550. ... For calendar year 2025, a 'high deductible health plan' is defined under Section 223(c)(2)(A) as a health plan with an annual deductible that is not less than $1,650 for self-only coverage or $3,300 for family coverage, and for which the annual out-of-pocket expenses (deductibles, co-payments, and other amounts, but not premiums) do not exceed $8,300 for self-only coverage or $16,600 for family coverage. .... For plan years beginning in 2025, the maximum amount that may be made newly available for the plan year for an excepted benefit HRA under Section 54.9831-1(c)(3)(viii) is $2,150. "

"Although the final regulations do not apply to most group health plans, they apply to most carriers and TPAs. As a result, Section 1557 will now apply at least indirectly to most group health plans."

"[T]he rule  ... [1] Requires providers, insurers, grantees and others to inform individuals of the availability of language assistance services and accessibility services at no cost ... [2] Codifies that Section 1557's prohibition against discrimination based on sex includes pregnancy, sexual orientation, gender identity and sex characteristics; [3] Reiterates that nondiscrimination in health programs and activities applies to the use of artificial intelligence (AI), clinical algorithms, predictive analytics and other tools ... [and] [4] Clarifies the application of Section 1557 nondiscrimination requirements to health insurance plans[.]"

"[T]he Fourth Circuit has affirmed trial court rulings that the exclusion of coverage for gender affirming care by state health plans in West Virginia and North Carolina violated the nondiscrimination protections of [ACA] Section 1557. Current and former state employees (and a Medicaid program participant) sued because the states' health plans and programs denied coverage for medically necessary gender affirming care for themselves or their dependents." [ Kadel v. Folwell , No. 22-1721 (4th Cir. Apr. 29, 2024)]

"[The] main takeaway from the [DOL's] fact sheet , budget , and the stated Enforcement Projects , as well as recent experience with DOL investigations, is that the following areas may be of particular focus during future DOL investigations: [1] Cybersecurity and participant data issues.... [2] Missing participants ... [3] Illiquid and hard-to-value assets, including private equity and alternative investment classes (such as cryptocurrency) in both defined benefit and defined contribution plans.... [4] Mental health parity and MHPAEA enforcement.... [5] Proper use of plan forfeitures.... [5] Evidence of insurability issues[.]"

"[1] Speak with insurers and third-party administrators to understand whether, and to what extent, the coverage provided is offered in compliance with the non-discrimination requirements, as detailed in the 2024 HHS rulemaking.... [2] Confirm that, absent a religious freedom and conscious exemption, the plan does not enforce a blanket restriction or any types of nominal restrictions prohibiting plan-level coverage of healthcare benefits related to the treatment of gender dysphoria ... [3] Understand the Section 1557 complaint process, including submission, evaluation, retaliation, and disposition."