Compliance Matters Newsletter | December 2024

Let our team help you navigate the ever-changing benefits compliance landscape each month. Check out this month’s latest alerts, additional updates, and resources hot off the press:

Employee Benefits Compliance Alerts

This month’s Compliance Matters newsletter provides a comprehensive review of the following topics. To obtain your copy, please use the form below to download.

• Post-Election Predictions for Employee Benefits
• Proposed Rules for Enhancement of ACA Preventive Services
• Employee Benefits Litigation Series: Obesity Drug Exclusions Face Lawsuit
• 2024 State Regulation Series: Texas SB 51 Termination of Coverage Requirements

Additional Updates & Resources

Gag Clause Prohibition Attestation Due December 31

The next Gag Clause Prohibition Attestation is due on or before December 31, 2024. This is the second year of this requirement. The next installment requires an attestation for the time period since the prior attestation.

According to the CMS guidance, the “attestation period” generally begins the day immediately following the date of the prior attestation and extends to the date of the current attestation. The year in which the attestation is submitted is the “attestation year.” For example, an attestation submitted on October 10, 2024, for a Responsible Entity that submitted its GCPCA for the prior attestation year on November 30, 2023, would have an attestation period of December 1, 2023, to October 10, 2024, and an attestation year of 2024.

The gag clause prohibition requirements apply to almost all employer-sponsored health plans but not to excepted benefits (e.g., stand-alone dental or vision, health flexible spending account (FSA), employee assistance program [EAP]), retiree-only plans, or account-based plans (e.g., health reimbursement arrangements [HRAs], including individual coverage HRAs [ICHRAs]).

While the instructions from the agencies indicate that carriers or third party administrators (TPAs) may attest for the group health plan on behalf of sponsoring employers, carriers and TPAs are taking a varied approach as to their willingness to attest on behalf of employers again this year. Employers should contact their carriers, TPAs and other service providers and ask them to confirm that no gag clauses are present in the contracts they have entered into with providers on behalf of the group health plan and whether they plan to complete the attestation. Generally speaking, most service providers will complete the attestation for fully insured plans but not for self-funded plans.

For any employer that must complete the attestation themselves, EPIC provided detailed instructions in our previous alert from August 2024. The attestation is a fairly straightforward process. It requires only some plan identifying information, employer contact information, the prior attestation date, which can be populated using the website looked up tool, and a checked box and signature to indicate compliance. For more information or assistance, please reach out to your EPIC consultant. CMS provides detailed instructions and resources, including updated instructions and a user manual on its website.

Departments Issue Disaster Relief For Plan Participants Impacted by Recent Hurricanes

On November 7, 2024, the Department of Labor (DOL) Employee Benefits Security Administration (EBSA) issued guidance and relief for participants and employee benefit plans affected by hurricanes Helene and Milton.

The DOL states that they understand that plan participants may have difficulty meeting deadlines and that plan sponsors, fiduciaries, employers and other service providers may face challenges complying with their obligations under the Employee Retirement Income Security Act (ERISA). Given these anticipated difficulties, the DOL, along with the Departments of the Treasury and the Internal Revenue Service (IRS), extended certain time frames for participants to exercise their rights to healthcare coverage and continuation of group health plan coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). The Departments also provided relief under ERISA to file benefit claims, appeal denied claims, and make important decisions about their health coverage, retirement and other benefits.

Along with the guidance and relief, the Departments issued a set of Frequently Asked Questions (FAQs) on health and retirement benefit issues for those affected by the storms. This resource helps plan participants, beneficiaries, plan sponsors and employers understand their rights and responsibilities under ERISA.

OCR Change Healthcare Update

On October 22, 2024, Change Healthcare notified the Department of Health and Human Service (HHS) Office for Civil Rights (OCR), the department that enforces the Health Insurance Portability and Accountability Act (HIPAA), that approximately 100 million individual notices have been sent regarding the Change Healthcare breach that occurred earlier this year.

You can access our most recent Alert on the change healthcare cyberattack in our August 2024 newsletter.

Massachusetts HIRD Form Due December 15

Since 2018, Massachusetts has required employers with six or more employees in the state to file a healthcare coverage form called the Health Insurance Responsibility Disclosure (HIRD) that provides information to the state about employer-sponsored health coverage, including information about employee cost, benefits offered, cost-sharing and employee eligibility. The form does not require employers to submit employee-specific information or protected health information (PHI). The state uses the information collected on the HIRD form to assist MassHealth in identifying its members with access to qualifying employer-sponsored coverage through the MassHealth Premium Assistance Program, a program that helps eligible individuals pay for employer-sponsored coverage. The HIRD form will often eliminate the need for employers to complete a separate Premium Assistance Application for the employee.

Information required to submit the form can generally be found in plan documents such as summary plan descriptions (SPDs), summary of benefits and coverage (SBCs) and open enrollment materials. Examples of information required for submission include the employee’s monthly contribution, in-network deductible and in-network out-of-pocket maximum, benefits waiting periods, hours worked per week to qualify for health insurance and other benefits eligibility criteria.

Plan years ending prior to December 31, 2024, should submit the HIRD form using upcoming plan year information for the health plan(s) instead of using the current plan year information. If health plan information such as rates or plan designs is not available before the filing deadline, employers may submit the HIRD form using the current plan year information for the health plan(s).

The 2024 HIRD submission deadline is December 15, 2024, and the form must be filed through the Mass Tax Connect website. Employers with multiple Federal Employer Identification Numbers (FEINs) should file a separate HIRD form for each FEIN. You may access screenshots of the HIRD form and form completion Frequently Asked Questions (FAQs). If you have questions about filing the HIRD, please call the HIRD information line at (617) 466-3940.

Seattle Announces Hotel Ordinance Expenditure Updates

Since 2020, the city of Seattle, Washington has required that hotel industry employers make a certain amount of healthcare expenditures for employees each month under the Improving Access to Medical Care for Hotel Employees Ordinance. Employees working at least 80 hours per month for a covered hotel industry employer in Seattle are covered by the ordinance. Starting January 1, 2025, hotel industry employers must spend at least $561 per month on covered employees who are covering themselves only. Employees with spouses or domestic partners must receive at least $1,124 per month, while employees covering themselves and dependents must receive at least $955 per month. Employees covering their families must receive at least $1,686 per month. Covered employers can access more information about the ordinance on the Office of Labor Standards website.