Compliance Recap - May 2019

May was a busy month in the employee benefits world. The Internal Revenue Service (IRS) released health savings account annual contribution limits and high deductible health plan minimum annual deductibles and annual out-of-pocket maximums for 2020.

The Department of Labor (DOL) released questions and answers (Q&As) to clarify its enforcement of the association health plan final rule. The Department of Health and Human Services (HHS) published a final rule that implements conscience rights protections contained in federal laws.

The Department of Health and Human Services’ Office for Civil Rights (OCR) released a proposed rule to revise its regulations implementing the Patient Protection and Affordable Care Act’s Section 1557. The IRS released an information letter on how to determine whether an item is a Section 213 medical care expense.

The OCR released a fact sheet clarifying when business associates are directly liable for violations of the Health Insurance Portability and Accountability Act (HIPAA). The OCR also released frequently asked questions regarding HIPAA liability when an app uses or discloses protected health information.

UBA Updates

UBA updated or revised existing guidance:

IRS Releases 2020 HSA Contribution Limit and HDHP Deductible Minimum and OOP Maximum

The Internal Revenue Service (IRS) released the annual contribution limits for health savings accounts (HSAs) and the high deductible health plan (HDHP) minimum annual deductibles and the HDHP annual out-of-pocket (OOP) maximums for the 2020 calendar year.

The HSA contribution limit will be $3,550 for self-only coverage and $7,100 for family coverage. The HDHP minimum annual deductible will be $1,400 for self-only coverage and $2,800 for family coverage. The HDHP OOP maximum will be $6,900 for self-only coverage and $13,800 for family coverage.

Update on DOL Enforcement Policy Regarding Association Health Plans

On March 28, 2019, the U.S. District Court for the District of Columbia (Court) found that the Department of Labor (DOL) association health plans (AHPs) final rule exceeded the statutory authority delegated by Congress under the Employee Retirement Income Security Act (ERISA) and that the final rule unlawfully expands ERISA’s scope. In particular, the Court found the final rule’s provisions – defining “employer” to include associations of disparate employers and expanding membership in these associations to include working owners without employees – were unlawful and must be set aside.

On May 13, 2019, the DOL issued Questions and Answers – Part Two (Q&As) as follow up to the DOL’s April 2019 AHP enforcement statement. In the Q&As, the DOL clarifies two points.

First, although new AHPs formed under the DOL’s final rule cannot market to and sign up new employer members, existing AHPs can continue to enroll new employees upon HIPAA special enrollment events (for example, upon marriage, birth, adoption, placement for adoption, or loss of eligibility for other coverage) and consistent with the plan’s eligibility terms (for example, enrolling new hires) while the DOL’s enforcement relief remains in effect.

Second, although AHPs are not required to obtain an advisory opinion from the DOL, AHPs with questions about whether they meet the DOL’s pre-rule guidance for sponsoring an AHP can either request an official advisory opinion from the DOL or have an informal discussion with the DOL’s employee benefits law specialists by contacting the DOL.

In the upcoming months, the U.S. Court of Appeals for the District of Columbia Circuit will consider the legal arguments in this case. Employers in AHPs should keep apprised of future developments in this case.

Read more about the DOL’s enforcement of the final rule.

HHS Publishes Conscience Rights Final Rule

On May 21, 2019, the Department of Health and Human Services (HHS) published a final rule and released a fact sheet to implement the conscience rights protection provisions contained in federal laws such as the Church Amendments, the Coats-Snowe Amendment, the Weldon Amendment, and the Patient Protection and Affordable Care Act (ACA).

Although the final rule does not create any new conscience rights protection, individuals, health care entities (including health plans and plan sponsors), and providers are protected from discrimination in health care (based on their religious belief or moral conviction) by government or government-funded entities. The final rule requires applicants for and recipients of federal financial assistance from HHS to attest that they will comply with conscience rights and anti-discrimination laws. The final rule implements enforcement tools, such as investigating complaints, compliance reviews, and withholding federal funds, similar to other civil rights laws, to ensure compliance with federal conscience rights protection laws.

OCR Releases Proposed Rule to Revise ACA Section 1557 Regulations

The Department of Health and Human Services’ Office for Civil Rights (OCR) released a proposed rule and fact sheet to revise its regulations under the Patient Protection and Affordable Care Act’s Section 1557. The current Section 1557 regulations remain in effect until a final rule is published.

The proposed rule would eliminate:

  • Certain definitions, including the definition of “covered entity”
  • Specific nondiscrimination definitions based on sex and gender identity
  • Translated taglines in significant consumer communications, the requirement to post information about Section 1557 and nondiscrimination at a covered entity’s locations and website, use of language access plans, and certain video standards for individuals with limited English proficiency (LEP)
  • Any reference to a private right of action to sue covered entities for violations of the proposed rule
  • The requirement to have a compliance coordinator and written grievance procedure to handle complaints about Section 1557 violations
  • Enforcement-related provisions

Public comment on this proposed rule will close 60 days after the proposed rule is published in the Federal Register. After considering public comments, OCR will issue a final rule. The final rule will be effective 60 days after it is published in the Federal Register.

Read more about the proposed rule in our “Updated on Nondiscrimination Regulations Relating to Sex, Gender, Age, and More” Advisor and our “Update on Nondiscrimination Regulations Relating to Sex, Gender, Age, and More – for Health Care Providers” Advisor.

IRS Releases Information Letter on Section 213 Medical Care Expenses

The Internal Revenue Service (IRS) released an information letter in response to a question of whether menstrual care products’ costs qualify as medical care expenses under Internal Revenue Code Section 213 for purposes of health savings accounts, health flexible spending accounts, and other tax-preferred accounts.

Although the IRS declined to specifically answer the question, it indicates that medical care expenses under Section 213 are limited to expenses paid primarily for the prevention or alleviation of a physical or mental defect or illness. Generally, an expense that benefits a person’s general health is a personal expense and not a medical care expense. A personal expense will only qualify as a medical care expense if the person would not have incurred the expense but for the person’s disease or illness.

The IRS lists some objective factors to use in determining whether an expense may qualify as a Section 213 medical care expense:

  • The motive or purpose for making the expenditure
  • A medical condition diagnosis and a physician’s recommendation of the item as treatment or mitigation
  • The relationship between the treatment and the illness
  • The treatment’s effectiveness
  • The proximity in time to the disease’s onset or recurrence.

OCR Releases Fact Sheet on Business Associate Liability

The Department of Health and Human Services Office of Civil Rights (OCR) recently released a fact sheet listing ten HIPAA violations for which business associates are directly liable.

Read more about business associate liability.

OCR Releases FAQs on HIPAA Applicability to Health-Related Apps

The Department of Health and Human Services Office for Civil Rights (OCR) recently released five Access Rights, Apps and APIs frequently asked questions (FAQs) regarding covered entities’ liability under HIPAA and HITECH for an application’s (app) use or disclosure of an individual’s protected health information (PHI).

If the app is not provided by or on behalf of the covered entity, the covered entity will not be liable for a PHI breach experienced by the app. However, if the app was developed for or provided by or on behalf of the covered entity, the covered entity could be liable under HIPAA because the app developer would be a business associate. A covered entity will not be liable for a PHI breach that occurs due to a person’s request that unencrypted PHI be transmitted to an app.

Question of the Month

Q: Who must pay the Patient-Centered Outcomes Research Institute (PCORI) fee and when is the fee due?

A: The fee must be determined and paid by:

  • The insurer for fully insured plans (although the fee likely will be passed on to the plan)
  • The plan sponsor of self-funded plans, including HRAs
    • The plan’s TPA may assist with the calculation, but the plan sponsor must file IRS Form 720 and pay the applicable fee
    • If multiple employers participate in the plan, each must file separately unless the plan document designates one as the plan sponsor

The fee is due by July 31, 2019 for the following plan/policy years:

Plan/Policy Year Year Fee Is Due

($2.39, indexed/person)

Feb. 1, 2017 – Jan. 31, 2018 July 31, 2019
March 1, 2017 – Feb. 28, 2018 July 31, 2019
April 1, 2017 – March 31, 2018 July 31, 2019
May 1, 2017 – April 30, 2018 July 31, 2019
June 1, 2017 – May 31, 2018 July 31, 2019
July 1, 2017 – June 30, 2018 July 31, 2019
Aug. 1, 2017 – July 31, 2018 July 31, 2019
Sept. 1, 2017 – Aug. 31, 2018 July 31, 2019
Oct. 1, 2017 – Sept. 30, 2018 July 31, 2019
Plan/Policy Year Year Fee Is Due

($2.45, indexed/person)

Nov. 1, 2017 – Oct. 31, 2018 July 31, 2019
Dec. 1, 2017 – Nov. 30, 2018 July 31, 2019
Jan. 1, 2018 – Dec. 31, 2018 July 31, 2019



What HR pros should know about clinical guidelines

Clinical guidelines are designed to optimize patient care in areas such as screening and testing, diagnosis and treatment. Read this blog post for what HR professionals should know about these guidelines.

Your employees and their family members frequently face tough questions about their healthcare: How do I know when it’s time to get a mammogram? When does my child need a vision screening? Should I get a thyroid screening? If I have high blood pressure or diabetes, what is the best treatment for me?

For the providers who care for them, the key question is: How do we implement appropriate, science-backed treatments for our patients, testing where needed, but avoiding potentially harmful or unnecessary (and expensive) care? The answer is to seek guidance from and use clinical guidelines —along with existing clinical skills — wisely.

Clinical guidelines are sets of science-based recommendations, designed to optimize care for patients in areas such as screening and testing, diagnosis and treatment. They are developed after a critical review by experts of current scientific data and additional evidence to help inform clinical decisions across a spectrum of specialties.

Based upon this process, guidelines are then released by a number of sources and collaborations, including academic and non-profit healthcare entities, government organizations and medical specialty organizations.

From preventive care to treatment protocols for chronic conditions, guidelines provide a framework healthcare providers use with patients to help guide care. However, it’s important to note that clinical guidelines are not rigid substitutes for professional judgment, and not all patient care can be encompassed within guidelines.

The impact on healthcare and benefits

Clinical guidelines are used in myriad ways across the healthcare spectrum, and providers are not the only ones who utilize them. Insurers also may use guidelines to develop coverage policies for specific procedures, services and treatment, which can affect the care your covered population receives.

To illustrate a key example of an intended impact of guidelines on health plan coverage, consider those issued by the U.S. Preventive Services Task Force, whose A and B level recommendations comprise the preventive services now covered at no cost under the mandate of the Affordable Care Act.

As another example, the National Committee for Quality Assurance, which accredits health plans and improves the quality of care through its evidence-based measures, uses the American Heart Association guidelines when creating its quality rules for treating high cholesterol with statin drugs.

Other examples exist among commercial coverage policies. For example, some cancer drug reimbursement policies use components from nationally recognized guidelines for cancer care.

Because science is rapidly changing, guidelines are often updated, leading insurers to revisit their policies to decide if they will change how services and medications are covered for their members. Providers and health systems may modify processes of patient care in response to major changes in guidelines and/or resultant changes in payer reimbursement.

Not all guidelines are updated on a set schedule, making it even more important for providers and organizations that rely on guidelines to stay on top of changing information, as it can have a direct impact on how they work. Attending conferences, visiting the recently established ECRI Guidelines Trust, and regularly reviewing relevant professional association websites and journals can help ensure needed guidelines are current. Lack of current information can affect care decisions and potential outcomes for patients. Those who have access to the most up-to-date, evidence-based information are able to work together to make well-informed healthcare decisions.

Why it matters for employers

As employers or benefits consultants, it’s critical to ensure that your health plan, advocacy or decision support providers, and other partners that depend on this information to guide their practices and decisions understand and follow current, relevant guidelines.

Further, by combining information from relevant guidelines and data from biometric screenings, health risk assessments, claims and other sources, it’s possible for clinical advocacy and other decision support providers to identify employees with gaps in care and generate targeted communications (through a member website and/or mobile app) to help them take action to improve their health.

Clinical guidelines are science distilled into practical recommendations meant to be applied to most patients for quality healthcare. By maintaining current, relevant guidelines, organizations and providers who work with your covered population can ensure that all parties have the key information they need to make the best decisions for their health.

SOURCE: Sivalingam, J. (18 March 2019) "What HR pros should know about clinical guidelines" (Web Blog Post). Retrieved from

Trump proposes bigger role for skimpy insurance, undermining ACA

Are you an advocate of short-term insurance plans? Get some of the pros and cons in this article from Employee Benefit Advisor on the Trump administration.

The Trump administration is proposing to expand the availability of short-term insurance plans, offering a cheaper health coverage option for consumers, while taking another step to undercut Obamacare.

The Department of Health and Human Services proposed allowing short-term plans to be sold for coverage periods of up to a year, up from the current maximum of three months set by the Obama administration. The plans would also be allowed to offer far less comprehensive coverage than plans sold under the Affordable Care Act.

The short-term plans are likely to appeal to healthier individuals who don’t think they need full coverage, potentially drawing them out of Obamacare’s markets. Combined with earlier moves by the Trump administration -- such as ending the ACA requirement that all people buy health coverage or pay a fine -- the latest proposals could result in higher costs or fewer options for individuals who still want to buy the more comprehensive Obamacare plans.

The Administration said its goal is to give people more insurance options at a time when premiums have been rising.


“It’s one step in the direction of providing Americans with health insurance options that are both more affordable and more suited to individual and family circumstances,” HHS Secretary Alex Azar said on a conference call with reporters. “We need to be opening up more affordable alternatives to the all too often unaffordable Affordable Care Act health insurance policies.”

‘Young or Healthy’

The administration, in the proposed rule announced Tuesday, said the short-term plans may lack some Obamacare protections such as required coverage of pre-existing conditions, and coverage for a broad array of services such as maternity care, hospital stays and prescription drugs. But it anticipates that most of the individuals who switch to the plans will be “relatively young or healthy.”

The proposed rule builds on an executive order the president issued last year. The health insurance industry has been divided on the plans, with some insurers already offering them, while others worry they could undermine the ACA’s individual market.

UnitedHealth Group Inc., the biggest U.S. health insurer, already offers short-term coverage, and has said it would explore expanding offerings. Two major industry lobby groups, America’s Health Insurance plans and the Blue Cross Blue Shield Association, have warned that the short-term plans could harm state insurance markets.

Read the original article.

Bloomberg News (20 February 2018). "Trump proposes bigger role for skimpy insurance, undermining ACA" [Web Blog Post]. Retrieved from address