Capitol Benefits Group News & Updates

New Guidance Issued on Surprise Billing, Out-of-Pocket Limits, and Facility Fees

The Departments of Health and Human Services, Labor, and Treasury (the Departments) published a set of FAQs that clarify how certain surprise billing protections interact with the Affordable Care Act’s (ACA) maximum out-of-pocket limit (OOP) requirements. The FAQs also clarify whether facility fees are subject to specific transparency in coverage requirements.

Surprise Billing Protections and the ACA’s OOP Limits

The No Surprises Act within the Consolidated Appropriations Act 2021 (CAA 2021) and the Affordable Care Act include provisions that seek to regulate participant cost-sharing. Under the ACA, non-grandfathered health plans must impose annual maximum limits on participant OOP costs for in-network essential health benefits. The No Surprises Act addresses out-of-network costs by providing that if a participant receives emergency care or air ambulance services from an out-of-network (OON) provider and/or care from an OON provider at an in-network facility, the participant can only be billed the in-network amount for that service.

The FAQs establish that much of the care a participant receives will fall under one of these protections—plans cannot contractually evade both protections at the participant’s expense. If a service or provider is considered OON under the surprise billing protections, the amount the participant pays for their care will not contribute to the participant’s OOP limit under the ACA. But, that care will be subject to the surprise billing protections, and therefore the participant can only be billed the in-network cost for that service. Of course, if a participant receives in-network care, that care will not be subject to the surprise billing protections, but the amount the participant pays will count towards the individual’s OOP limit.

Importantly, the FAQs emphasize that whether a service or provider is OON according to the surprise billing laws depends on whether the plan or issuer has a contractual relationship with the provider, facility, or air ambulance service provider. If a contractual relationship exists (regardless of whether the plan classifies the entity as in-network), then (1) the entity must be considered in-network for purposes of the No Surprises Act’s surprise billing protections and (2) the cost of the care the participant receives from that provider or facility must be considered in-network for the plan’s maximum out-of-pocket limits.

Facility Fees

The federal Transparency in Coverage (TiC) rules, another component of the CAA 2021, require plans and issuers to make an online, self-service price comparison tool available for enrollees so that they can estimate their cost-sharing for services covered under the plan. For plan years beginning on or after January 1, 2023, the price comparison information must be available for a list of 500 items and services; for plan years beginning on or after January 1, 2024, the tool must be available for all covered items and services.

In the last section of the FAQs, the Departments acknowledge that participants are frequently charged facility fees when they receive care through a hospital-owned facility outside of the hospital setting (e.g., treatment at an urgent care center owned by a hospital system). The FAQs clarify that these fees qualify as medical care costs under the federal TiC rules; therefore, facility fee information must be available to enrollees in the online price comparison tool.

Finally, the No Surprises Act includes requirements that (1) providers and facilities generate good faith estimates for scheduled items and services and (2) that plans and issuers provide an advanced explanation of benefits to participants for their scheduled items and services. These requirements are currently on hold pending implementation guidance from the Departments. However, the Departments note that they will address facility fees when they release such guidance.

New Form I-9 Available

On July 21, 2023, the U.S. Citizenship and Immigration Services (USCIS) announced a new version of Form I 9, also known as the Employment Eligibility Verification form. Employers are required to use this form to verify that their employees are authorized to work in the United States. Employers can begin using the new form August 1, 2023.

Pay or Play Affordability Percentage Will Decrease for 2024

The IRS released the updated affordability contribution percentage for 2024 for purposes of the ACA’s pay or play rules. This Legal Update provides an overview of the updated affordability percentage.

Under the ACA, employer-sponsored minimum essential coverage (MEC) is affordable if an employee’s required contribution for the lowest-cost, self-only option with minimum value does not exceed an annually indexed percentage of the employee’s household income. Employees and their family members eligible for minimum value, employer-sponsored MEC that meets the affordability standard cannot receive premium tax credits or cost-sharing reductions for public exchange coverage.

For Applicable Large Employers (ALEs), this decrease will mean they must contribute a larger share of their employees’ premiums to meet the affordability requirement. The significance of yet another decrease in the percentage cannot be overlooked.

Employers should start planning very soon as to what their 2024 benefits package will look like and how the percentage decrease and corresponding increase in contribution will affect their overall 2024 strategy. The potential quandary for some of these employers exists because they may have had ideas of including additional benefits to their package, they may have been considering wage increases for some employees, and others may have opted to decrease their contributions. To provide the best possible benefits at an affordable cost, employers may now have to revisit their prior intentions.

Setting new health plan premium contributions for the 2024 plan year will take some thoughtful consideration from employers who hope to maintain a complete benefits package without creating a financial burden.

An ALE wants to comply with the new affordability requirements to avoid the significant monetary penalties attached to non-compliance. And just as a helpful reminder, non-calendar year plans will continue to use 9.12% to determine affordability in 2024 until their new plan year starts.

2024 Open Enrollment Checklist

To prepare for open enrollment, health plan sponsors should be aware of the legal changes affecting the design and administration of their plans for plan years beginning on or after January 1, 2024. This Compliance Overview includes an open enrollment checklist for the 2024 plan year. It has been updated to include the affordability percentage for 2024 under the ACA's "pay or play" rules for applicable large employers (ALEs).

HR Toolkit - HR Department of One

Are you an HR Department of One? Or Does it Feel Like that sometimes?

This toolkit is intended to help individuals who are tasked with running an entire HR department for a company. It includes best practices, sample forms, policies, and other resources to help small HR teams succeed!

The content herein is provided for general information purposes only, and does not constitute, legal, tax, or other advice or opinions on any matters. This information has been taken from sources which we believe to be reliable, but there is no guarantee as to its accuracy.

WEBINAR ARCHIVE

There was a series of live webinar sessions hosted by our Zywave legal content partners over the summer months on hot and trending topics for employer groups! We are sharing the recording links for a couple of the most highly attended events if you would still find value in listening to the discussions and accessing the slide deck materials.

Supporting Mental Health in the Workplace

Mental health concerns can affect employees’ work and personal lives. Employers should be aware of the issues facing their employees and how to promote employee wellness. This webinar will focus on steps employers can take to support employees’ mental health and specific legal protections that may apply. This webinar will focus on steps employers can take to support employees’ mental health and specific legal protections that may apply.

Register to access the recording link HERE.

Employee Handbook Best Practices

Employee handbooks are an important tool for employers. To be most effective, handbooks must cover key topics, comply with applicable laws and be up to date. This webinar will review tips and recommendations for having an effective and compliant employee handbook. This webinar will review tips and recommendations for having an effective and compliant employee handbook.