OSHA Guidance for Reopening Nonessential Businesses

On June 18, 2020, the Occupational Safety and Health Administration (OSHA) released guidance to help employers plan how to reopen nonessential businesses. The guidance also addresses issues employers should consider as they ask their employees return to work during the COVID-19 pandemic.

OSHA’s guidelines for reopening nonessential businesses provide general principles for updating restrictions that were originally put in place to slow the spread of the coronavirus.

OSHA’s publication includes charts, examples and illustrations of how safety principles can be implemented for reopening. Specifically, this new guidance covers:

  • How to plan a reopening
  • OSHA standards and required protections in the workplace
  • Available OSHA assistance programs
  • Answers to employer frequently asked questions.

OSHA has stated that this new guidance is meant to supplement the White House’s Guidelines for Opening Up America Again and the Guidance on Preparing Workplaces for COVID-19 developed by the U.S. Departments of Labor and Health and Human Services. A as a result, businesses should follow local timelines and phased reopening plans as they implement OSHA’s guidance.

Employers should also continue to monitor federal, state and local updates about community disinfection, best practices and transmission mitigation measures. For example, employers can visit OSHA’s coronavirus webpage and the Centers for Disease Control and Prevention website for updates.

Work Comp Insights – Why an Established Clinic Relationship is Essential

Chances are your organization has a process for making significant purchases. But does that process include medical care for injured employees? Probably not. Without any guidance, your injured employees may seek care from their family doctors or other general practitioners in your health care network. However, these care providers may not be optimally qualified to treat occupational injuries.

By partnering with an appropriate medical provider you can improve injured employees’ access to occupational health care and enhance the effectiveness of their treatments. You can also reduce your workers’ compensation costs by returning employees to productive work as soon as possible.

Choosing the Right Provider

Relying on the credentialing process of your group health network may not be enough to assure your employees are receiving the best occupational medical care. Just because a provider is credentialed through a network doesn’t mean that they are best qualified to treat workplace injuries.

Without a pre-arranged plan, your employee may end up with a medical provider who does not give adequate consideration to a work-

focused physical examination. You want a provider who will establish causation for the injury and develop a treatment plan to achieve maximum medical improvement in the shortest period of time.

The key is to recognize the important differences between the occupational health delivery system and the general medical community. Your company needs to find and partner with medical providers that share the following characteristics:

  • Occupational health delivery and injury management are among their core practice areas.
  • Their mission and vision support your goals of keeping your employees safe, healthy and on the job.
  • They use evidence-based protocols, such as those established by the American College of Occupational and Environmental Medicine (ACOEM), to find the optimal treatments and outcomes for your employees, and to benchmark and monitor treatment outcomes and utilization.

Early Return To Work

In recent years, the frequency of workers’ compensation claims has declined, yet workers’ compensation costs continue to climb. Medical, lost time and other claim costs continue to trend higher despite employer safety initiatives and persistent government efforts at policy reform.

Partnering with the right medical provider is one way to combat this trend. Study after study has shown that workers who return to work within three or four days are much less likely to file lost time claims than those with longer absences. Providers who understand this important dynamic—and who make prompt recommendations for returning employees to work with any appropriate restrictions—are your primary allies in keeping claim costs down.

Your relationship with medical providers will help you control costs in several specific ways—some of which may not be obvious:

  • Employees will return to work sooner, thus keeping the claim “medical-only” in many cases. Medical-only classification rules vary by state, but this has a significant impact on the workers’ compensation modification factor.
  • The medical-related costs of the claim will be reduced because the treatment plan is more effective.
  • The indemnity-related costs of the claim (the payments associated with lost time) will be reduced because the treatment plan results in the employee returning to work sooner, or on modified duty.
  • Your employees will be more likely to approach an approved occupational medical provider with a positive attitude and expectations. This decreases the potential for a “malingering” claim and potential litigation.

Implementation

Developing a relationship with the proper provider may seem daunting, but with a little forethought you will be able to build a successful relationship that will offer continued benefits:

Develop a contact list of medical providers: Once you have your list, contact the providers by phone. Get the names of the medical director, clinic director, business manager or clinic marketing staff. Don’t be intimidated by communicating with medical professionals. Most clinics are eager for new business and will be more than willing to discuss options with you.

Qualify Providers: The purpose of your visit to the provider is twofold: you want to share more information about your company, its operations and its Return to Work program goals, and you want to learn if this provider will meet those goals. It is a good business practice to qualify medical services vendors the same way you would qualify the vendors of any other important products or services your business needs. In your discussions with a clinic, be clear that your focus is not to negotiate a deeply discounted fee schedule. Instead, communicate that you are offering to provide regular business to the clinic in exchange for their commitment to certain requirements.

Execute Performance Agreements Between Selected Providers and Your Organization: Once you have conducted your evaluation of the clinics and selected the one(s) that best suit your needs, it’s time to execute clinic and employer performance agreements to define your mutual expectations. These non-binding agreements are simply a reminder to all parties of the objectives of the relationship. You may need to negotiate the finer details, but the general purpose of the agreement should be acceptable to the majority of practices.

Execute Return to Work Agreements with Employees: After clinic and employer performance agreements have been completed, you should execute a return to work agreement with your employees. State law will determine the level of autonomy your employees have when choosing a provider. However, this agreement helps ensure that your employees are informed of the relationship your company has in place with medical providers. It is important for employees to understand that these providers were selected because they are well qualified to serve injured workers and the return to work process. Even if you are in a state where employees can select any physician, this agreement will still alert them to the distinction between occupational health medicine and general internal medicine.

Monitor Performance: With a strong clinic relationship, you can expect improvements in several measurable aspects of the return to work process. Look for the following:

  • A decrease in the various parameters measuring average time between events
  • A decrease in the percentage of off-duty workers
  • A decrease in the number of lost workdays
  • A decrease in the indemnity portion of losses
  • A decrease in the number of injuries exceeding expected disability duration

If you are not observing improvements, discuss the data with the clinic to determine whether process changes can improve the analytical measures.

Cyber Liability – Coronavirus and Remote Work

Given the implications of the coronavirus (COVID-19) outbreak, countless employees across a variety of industries are working remotely. While this allows businesses to remain operational, it can create a number of risks, particularly for those who fail to take the proper precautions.

Above all, information security is one the greatest challenges for companies allowing remote work during the COVID-19 outbreak. When an employee is at the office, their work is protected by safety standards that keep your company’s network and data secure. However, an employee working from home may not have the same safety measures in place to protect your organization’s devices and information.

In order to safeguard your business and employees from data breaches, cyber scams and viruses, consider the following strategies:

Train employees on how to detect and respond to phishing attacks. Criminals prey on unfortunate circumstances, seeking to capitalize on victims during times of panic and hardship. Unfortunately, the COVID-19 pandemic is no exception. Cyber criminals have been known to pose as charities and legitimate websites to lure victims into sending money and revealing personal information. Individuals should scrutinize any emails, texts and social media posts related to COVID-19 and be cautious when clicking any links and attachments. Specifically, employees should be instructed to:

  • Avoid clicking links from unsolicited emails, and be wary of email attachments.
  • Use trusted sources when looking for factual information on COVID-19, such as CDC.gov.
  • Never give out personal or financial information via email, even if the sender seems legitimate.
  • Never respond to emails soliciting personal or financial information.
  • Verify a charity’s authenticity before making any donations.

Have a virtual private network (VPN) in place, and ensure employees are using it to access company systems and data when working remotely. VPNs encrypt internet traffic, which can be particularly useful when your employees are connected to a home or public network. Furthermore, it could be beneficial for your company to prohibit employees from accessing company information from public networks altogether.

Mandate the use of security and anti-virus software. This software should be up to date and include the latest patches.

Educate your employees on the kinds of sensitive data they are obligated to protect. This could include confidential business information, trade secrets, intellectual property and personal information. When working with sensitive data, employees should take to the same precautions they would if they were at the office. They should avoid using their personal email for company business and think critically about the documents they are printing at home. If they must print sensitive information, they should shred the document when it is no longer needed. Encrypting sensitive information can also help you protect any data that is stored or sent to remote devices.

Prohibit employees from sharing their work devices with friends and family members. Doing so reduces risks associated with unauthorized or inadvertent access of company information.

Have employees update their contact information. That way, if your systems are compromised, you can easily contact your staff and provide the appropriate updates and instructions.

Create and communicate a system that employees can use to report lost or stolen equipment. This will help your IT department respond quickly and mitigate potential data loss threats.

Require two-factor authentication for all company passwords. Two-factor authentication adds a layer of security that allows companies to protect against compromised credentials. Through this method, users must confirm their identity by providing extra information (e.g., a phone number or unique security code) when attempting to access corporate applications, networks and servers. This additional login hurdle means that would-be cyber criminals won’t easily unlock an account, even if they have the password in hand.

Consider security precautions for mobile devices. Proper phone security is just as important as a well-protected computer network. A smartphone could grant access to any number of applications, emails and stored passwords. Depending on how your organization uses such devices, unauthorized access to the information on a smartphone or tablet could be just as damaging as a data breach involving more traditional computer systems.

For additional protection, employers should consider backing up data and bolstering network protections as best as they can. 

As the need for cyber liability coverage continues to grow, let The Unland Companies guide you through the protection you need from technology-related incidents. Policy premiums start as low as $500.

Coronavirus and the Workplace – Compliance Issues for Employers

As the number of reported cases of the novel coronavirus (COVID-19) continues to rise, employers are increasingly confronted with the possibility of an outbreak in the workplace.

Employers are obligated to maintain a safe and healthy work environment for their employees, but are also subject to a number of legal requirements protecting workers. For example, employers must comply with the Occupational Safety and Health Act (OSH Act), Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) in their approach to dealing with COVID-19.

This Compliance Bulletin provides a summary of the compliance issues facing employers in this type of situation.

Highlights

COVID-19

The illness caused by the coronavirus can cause symptoms ranging from mild to severe. Cases are expected to spread throughout the United States.

Disease Prevention

Employers must maintain a safe work environment for employees. They may require employees to stay home from work if they are at risk of spreading the disease.

Legal Obligations

Employers must also consider their obligations under workplace laws.

Action Steps

There are a number of steps that employers can take to address the impact of COVID-19 in the workplace. In addition to reviewing the compliance concerns outlined in this Compliance Bulletin, employers should:

  • Closely monitor the CDC, WHO and state and local public health department websites for information on the status of the coronavirus.
  • Proactively educate their employees on what is known about the virus, including its transmission and prevention.
  • Establish a written communicable illness policy and response plan that covers communicable diseases readily transmitted in the workplace.
  • Consider measures that can help prevent the spread of illness, such as allowing employees flexible work options like working from home.

What is the Coronavirus?

The 2019 novel coronavirus (“COVID-19” or “coronavirus”) is caused by a member of the coronavirus family that is a close cousin to the SARS and MERS viruses that have caused outbreaks in the past. Symptoms of COVID-19 include fever, runny nose, cough and trouble breathing. Most people develop only mild symptoms. But some, usually people with other medical complications, develop more severe symptoms, including pneumonia, which can be fatal. The incubation period for COVID-19 is from two to 14 days.

Initially detected in Wuhan, China in late 2019, the first case of COVID-19 in the United States was reported on January 21, 2020. Since then, the disease has spread to more than 50 people within the continental United States, with CDC officials warning of further outbreaks.

How is Coronavirus Spread?

The available information about how the virus that causes COVID-19 spreads is largely based on what is known about similar coronaviruses. COVID-19 is a new disease and there is more to learn about its transmission, the severity of illness it causes, and to what extent it may spread in the United States.

According to the CDC, the virus is thought to spread mainly from person to person, between people who are in close contact with one another (within about six feet) or through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby, or possibly be inhaled into the lungs.

It may also be possible for a person to contract COVID-19 by touching a surface or object that has been contaminated with the virus and then touching his or her own mouth, nose, or eyes, but this is not thought to be the main way the virus spreads.

People are thought to be most contagious when they are most symptomatic. Some spread might be possible before people show symptoms, and there have been reports of this occurring, but this is not thought to be the main way the virus spreads.

Disease Prevention in the Workplace

Whenever a communicable disease outbreak is possible, employers may need to take precautions to keep the disease from spreading through the workplace. It is recommended that employers establish a written policy and response plan that covers communicable diseases readily transmitted in the workplace.

Employers can require employees to stay home from work if they have signs or symptoms of a communicable disease that poses a credible threat of transmission in the workplace, or if they have traveled to high-risk geographic areas, such as those with widespread or sustained community transmission of the illness. When possible, employers can consider allowing employees to work remotely. Employers may require employees to provide medical documentation that they can return to work.

Employers can consider canceling business travel to affected geographic areas and may request that employees notify them if they are traveling to these areas for personal reasons. Employees who travel to China should be informed that they may be quarantined or otherwise required to stay away from work until they can provide medical documentation that they are free of symptoms.

There are several legal considerations that employers should keep in mind when implementing and administering a communicable illness policy. These considerations are addressed in the following sections.

Occupational Safety and Health Act of 1970

Under the federal Occupational Safety and Health Act of 1970 (the OSH Act), employers have a general duty to provide employees with safe workplace conditions that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Workers also have the right to receive information and training about workplace hazards, and to exercise their rights as employees without retaliation.

There is no specific Occupational Safety and Health Administration (OSHA) standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. In addition to the General Duty clause, OSHA’s Personal Protective Equipment (PPE) standards and Bloodborne Pathogens standard may apply to certain workplaces, such as those in the healthcare industry.

Employers should continue to monitor the development of COVID-19 and analyze whether employees could be at risk of exposure. It is also important for employers to consider what preventative measures they can take to maintain safety and protect their employees from potentially contracting COVID-19.

Also, OSHA requires many employers to record certain work-related injuries and illnesses on their OSHA Form 300 (OSHA Log of Work-Related Injuries and Illnesses). OSHA has determined that COVID-19 is a recordable illness when a worker is infected on the job. Establishments that are required to complete an OSHA 300 log should be sure to include all COVID-19 infections that are work related.

The Americans with Disabilities Act­­­

The Americans with Disabilities Act (“ADA”) protects applicants and employees from disability discrimination. It is relevant to COVID-19 because it prohibits employee disability-related inquiries or medical examinations unless:

  • They are job related and consistent with business necessity; or
  • The employer has a reasonable belief that the employee poses a direct threat to the health or safety of him-or herself or others (i.e., a significant risk of substantial harm even with reasonable accommodation).

According to the Equal Employment Opportunity Commission (EEOC), whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

The EEOC has said that sending an employee home who displays symptoms of contagious illness would not violate the ADA’s restrictions on disability-related actions because advising such workers to go home is not a disability-related action if the illness ends up being mild, such as a seasonal influenza. On the other hand, if the illness were serious enough, the action would be permitted under the ADA as the illness would pose a “direct threat.” In either case, an employer may send employees home, or allow employees to work from home, if they are displaying symptoms of contagious illness.

The ADA requires that information about the medical condition or history of an employee, obtained through disability-related inquiries or medical examination, be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. Employers should refrain from announcing to employees that a coworker is at risk of or actually has a disease. Instead, employers should focus on educating employees on best practices for illness prevention.

Employee Leave Requirements

If an employee, or an employee’s family member, contracts COVID-19, the employee may be entitled to time off from work under federal or state leave laws. For example, an employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take leave under the Family and Medical Leave Act (FMLA). An illness like COVID-19 may qualify as a serious health condition under the FMLA if it involves inpatient care or continuing treatment by a health care provider. Employees may also be entitled to FMLA leave when taking time off for medical examinations to determine whether a serious health condition exists.

Many states and localities also have employee leave laws that could apply in a situation where the employee or family member contracts COVID-19. Some of these laws require employees to be given paid time off, while other laws require unpaid leave. Employers should become familiar with the laws in their jurisdiction to ensure that they are compliant.

Some employees may wish to stay home from work out of fear of becoming ill. Whether employers must accommodate these requests will depend on whether there is evidence that the employee may be at risk of contracting the disease. A refusal to work may violate an employer’s attendance policy, but employers should consult with legal counsel prior to disciplining such an employee. However, if there is no reasonable basis to believe that the employee will be exposed to the illness at work, the employee may not have to be paid for any time that is missed.

Compensation and Benefits

If employees miss work due to COVID-19, whether they are compensated for their time off will depend on the circumstances. As noted above, employees may be entitled to paid time off under certain state laws if they (or a family member) contract the illness. In other cases, non-exempt employees generally do not have to be paid for time they are not working. Exempt employees must be paid if they work for part of a workweek, but do not have to be paid if they are off work for the entire week. Note that special rules may apply to union employees, depending on the terms of their collective bargaining agreement.

Employees may be entitled to workers’ compensation benefits if they contract the disease during the course of their employment. For example, employees in the healthcare industry may contract the disease from a patient who is ill. Whether an employee is eligible for other benefits, such as short-term disability benefits, will depend on the terms of the policy and the severity of the employee’s illness.

Communicating with Employees

As part of their efforts to prevent the spread of COVID-19 in the workplace, employers should consider communicating information about the illness to employees. The CDC, WHO and OSHA have all created informational material on the virus and its symptoms, prevention and treatment that can be helpful for employees.

Information Resources

CDC: Coronavirus Disease 2019 (COVID-19) Situation Summary

World Health Organization: Coronavirus disease (COVID-19) advice for the public

OSHA: Safety and Health Topics: COVID-19

President signs the “Further Consolidated Appropriations Act, 2020”

On December 20, 2019, President Trump signed H.R. 1865, the “Further Consolidated Appropriations Act of 2020” or the “Act”). The Act also includes a number of retirement and health and welfare provisions of interest to employers and service providers.

The Act would permanently repeal three taxes imposed under the Affordable Care Act:

    • Cadillac Tax: The Cadillac tax on high-cost employer health plans, which is scheduled to take effect in 2022. The tax was originally set to take effect in 2018 and apply to employer-sponsored health plans that in that year cost more than $10,200 for individuals and $27,500 for families. The rate is set at 40% of coverage costs that exceed those thresholds, which will be adjusted annually for inflation.
    • Medical Device Tax: A 2.3% tax on medical devices, which is currently suspended through Dec. 31, 2019. The tax applies to devices such as hip implants and pacemakers sold by a manufacturer, producer, or importer.
    • Insurance Provider Fee: An annual fee imposed on health insurance providers.

The Act contains other health and welfare provisions:

    • Smoking: The measure would increase the minimum age to purchase tobacco products to 21 years of age, from 18.
    • Reduction in Medical Expense Deduction Floor: The Act extends until December 31, 2020, the lower threshold of 7.5 percent of adjusted gross income for medical expense deductions. The Act keeps the lower (7.5 percent) threshold in place for 2019 and 2020.
    • Above the Line Deduction for Qualified Tuition and Related Expenses: Individuals are allowed a deduction equal to their qualified tuition and related expenses, including amounts paid for tuition, fees and other related expense for an eligible student that are required for enrollment or attendance at an eligible educational institution. The deduction was scheduled to sunset at the end of 2017, but the Act retroactively extends the deduction until the end of 2020.
    • Employer Credit for Paid Family and Medical Leave: The 2017 Tax Cuts and Jobs Act established new Section 45S of the Code, which provides a business tax credit for certain employer-paid family and medical leave. The paid family and medical leave credit ranges from 12.5 percent to 25 percent of the amount of wages paid to qualifying employees for 2 to 12 weeks of family and medical leave annually, where such wage payments are at least 50 percent of the wages normally paid to an employee. The paid family and medical leave credit was originally available for wages paid in 2018 and 2019. The Act extends the credit through 2020.
    • PCORI: The Patient-Centered Outcomes Research Institute would be extended through fiscal 2029. The measure would provide $275.5 million for it in fiscal 2020, increasing to $399 million for fiscal 2029. It also receives revenue from fees on health insurance and self-insured plans.

Private Insurance Costs Are Skyrocketing

 

Reprinted with permission from Drew Altman

Cumulative growth in per-enrollee spending, 2008-18

The cost of private health insurance is out of control, compared to Medicare and Medicaid. You see that clearly if you take a long-term view of recently released federal data on health spending.

Why it matters: This is why the health care industry — not just insurers, but also hospitals and drug companies — is so opposed to proposals that would expand the government’s purchasing power. And it’s why some progressives are so determined to curb, or even eliminate, private coverage.

By the numbers: Per capita spending for private insurance has grown by 52.6% over the last 10 years.

  • Per-capita spending for Medicare grew by 21.5% over the same period, and Medicaid 12.5%.

Private insurance generally pays higher prices for care than Medicare, which generally pays more than Medicaid.

  • There’s a long-running debate about whether public programs deliver efficiency because of their purchasing power, or simply underpay.
  • Democrats have proposed a variety of steps to curb health care costs, including cutting payments for out-of-network care, competition from a public insurance plan, and steep payment cuts through Medicare for All.
  • Industry opposes most of them.

The bottom line: The industry knows cutting government spending can only go so far. Any effort to rein in health care costs will have to confront the growth in the cost of private insurance.

Your Health Plan: Health Care Cost Drivers

Health care is one of the few things that people purchase and never know the real cost of. If most consumers paid for medical services and procedures just as they pay for other consumer goods—out of pocket—they might pay more attention to quality, cost and value.

The Actual Cost of Medical Problems

Many consumers would be surprised to learn what medical procedures really cost. Here are some typical prices for health care procedures in the United States:

  • Colonoscopy: $1,301
  • Maternity – Regular Delivery: $10,808
  • Maternity – C-Section: $16,106
  • CT Scan – Abdomen: $844
  • MRI: $1,119
  • Hospital Cost per Day: $5,220
  • Appendectomy: $15,930
  • Cataract Surgery: $3,530
  • Knee Replacement: $28,184
  • Hip Replacement: $29,067
  • Bypass Surgery: $78,318
  • Angioplasty: $31,620

Source: International Federation of Health Plans, “2015 Comparative Price Report”

It’s no secret that health care costs are rising. A number of factors contribute to these increasing costs—some of the biggest contributors are listed below.

Increasing Pharmaceutical Costs and Use

Health care costs are growing in part due to the increased use of prescription drugs, and an increase in the number of newer, more expensive drugs that are prescribed. Though prescription drug manufacturers have revolutionized modern medicine, these advances come at a cost.

As pharmaceutical companies develop new drugs to treat serious medical conditions, the market for those drugs expands accordingly. The trend in the pharmaceutical industry is to maximize profits by developing drugs to treat conditions for which there were previously no drug treatments. These new “lifestyle” drugs treat or control conditions like nail fungus, impotence, obesity or hair loss. Manufacturers then use direct-to-consumer advertisements that encourage customers to ask their doctors for prescriptions for these medications.

The increased use of lifestyle medications and direct-to-consumer advertising have raised serious questions about where America’s health care dollars are being spent and if consumers are getting the best value for their money.

New, Expensive Medical Technology

New medical devices, diagnostic tests and medical imaging tools are enabling doctors to deliver care that would have been impossible in years past. Medical technology, just like pharmaceuticals, has revolutionized medicine and improved the lives of many people—but those advances have also come with hefty price tags. As the number of older Americans increases, these new devices and treatments are being used even more.

Chronic Care

The health care system is primarily geared toward providing acute care and curing diseases. However, many people need care for chronic conditions. Chronic conditions are the major cause of illness, disability and death in the United States, and they account for a significant portion of health care spending.

  • According to the National Council on Aging (NCOA), about 80% of older adults have one chronic condition, accounting for more than two-thirds of the nation’s total health care costs.
  • NCOA also cites that 95 cents of every dollar of Medicare and 83 cents for every dollar of Medicaid go toward treating chronic disease.
  • The Centers for Disease Control and Prevention report that chronic diseases are the leading causes of death and disability in the United States.

Provider Consolidation

Before managed care revolutionized the American health care system, individual medical providers determined the fees for their services. However, with the domination of managed care plans, most providers have been forced to negotiate their prices lower or risk losing patient volume from managed care plans willing to exclude non-compliant providers from their networks.

In order to maintain or regain some negotiating power, providers in many communities have consolidated their medical practices, effectively monopolizing procedures within specific service areas. These large provider groups have a much greater ability to negotiate with managed care plans that wish to provide convenient care options for their members.

Health care costs and, consequently, employee health benefits costs have been increasing at a very high rate for nearly a decade. Unfortunately, cost increases are still outpacing the rate of inflation, making health care a growing cost burden for consumers.

Benefits Buzz

Open Enrollment: What’s Changing in 2020?

To prepare for open enrollment, group 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 Jan. 1, 2020. Employers should review their plan documents to confirm that they include these required changes.

In addition, any changes to a health plan’s benefits for the 2020 plan year should be communicated to plan participants through an updated summary plan description (SPD) or a summary of material modifications (SMM).

Health plan sponsors should also confirm that their open enrollment materials contain certain required participant notices, when applicable—for example, the summary of benefits and coverage (SBC). There are also some participant notices that must be provided annually or upon initial enrollment.

Important Notices

  • Annual CHIP notice
  • Medicare Part D creditable coverage notice
  • Notice of grandfathered status (if applicable)
  • Annual notice regarding coverage requirements for mastectomy-related benefits (WHCRA notice)

Don’t wait any longer to review your plans. Contact The Unland Companies for a full list of 2020 plan changes and requirements.

Hospitals to Publish Retail Prices Under a New Proposed Rule

In July, the Centers for Medicare and Medicaid (CMS) proposed rules that would require all Medicare-participating hospitals to post their negotiated prices for standard health care services.

The proposed rule is intended to increase pricing transparency and help consumers understand the charges they may incur before receiving care.

These are just proposed rules at the moment, which means no changes will be made effective until the rules are finalized. The agency is currently asking for comments on the proposed rule. The deadline for submitting comments is Sept. 27, 2019.

We will continue to monitor and keep you updated on these developments.

Can Health Insurance Rebates Affect Workers’ Comp Premiums?

Since 2012, the Affordable Care Act (ACA) has required insurers with a certain medical loss ratio (MLR) to issue a rebate to employers. Depending on the way the rebates are distributed, you may end up paying more for your workers’ compensation insurance.

Medical Loss Ratio

The MLR provision of the ACA states that insurers must spend a proportion of premium revenues on clinical services and improvements to the quality of care, or pay rebates to their customers. It is a basic financial measurement that the ACA uses to encourage health insurers to provide value to their customers.

The rebates can be issued in a few ways, some of which include:

  • Passing along MLR rebates directly to employees
  • Applying the rebates to future premiums
  • Applying the rebates to benefit enhancements

Impact on Your Payroll

When employers pass any portion of the rebates along to employees, the rebates must be counted as payroll for the purposes of workers’ compensation. This rule only applies if the rebate is coming through the employer and not directly from the insurance provider. The rule also applies regardless of whether the rebate distribution is taxable or nontaxable.

For many employers, the amount of money paid out in rebates will not significantly impact payroll due to rebates. Your workers’ compensation insurance premium is calculated based on your payroll, so if that increases, your premium likely will, too.

Here are a few more points to remember when issuing the rebates:

  • High-dollar rebates may be rare, but you should still be aware of their increased impact on your premium if you receive them.
  • Ensure that any information that is pertinent to your insurance coverages is up-to-date and thorough. Per the National Council on Compensation Insurance (NCCI), “an employer is required to keep records of information needed to compute [its] premium. In addition, the employer must provide records to the carrier, when requested, for the purpose of auditing the employer’s workers’ compensation policy.”

The relationship between the ACA and workers’ compensation is more complex than ever and still evolving. The Unland Companies can help you determine how to handle your health insurance rebates and keep you in the know with new information.

The ACA Remains in Place After Being Struck Down by a Federal Court

aca compliance bulletin logo

OVERVIEW

On Dec. 14, 2018, a federal judge ruled in Texas v. United States that the entire Affordable Care Act (ACA) is invalid due to the elimination of the individual mandate penalty in 2019. The decision was not stayed, but the WhiteHouse announced that the ACA will remain in place pending appeal.

This lawsuit was filed by 20 states as a result of the 2017 tax reform law that eliminates the individual mandate penalty. In 2012, the U.S. Supreme Court upheld the ACA on the basis that the individual mandate is a valid tax. With the penalty’s elimination, the court in this case ruled that the ACA is no longer valid under the U.S. Constitution.

ACTION STEPS

This ruling is expected to be appealed and will likely be taken up by the Supreme Court. As a result, a final decision is not expected to be made until that time. The federal judge’s ruling left many questions as to the current state of the ACA; however, the White House announced that the ACA will remain in place pending appeal.

Background

The ACA imposes an “individual mandate” beginning in 2014, which requires most individuals to obtain acceptable health insurance coverage for themselves and their family members or pay a penalty. In 2011, a number of lawsuits were filed challenging the constitutionality of this individual mandate provision.

In 2012, the U.S. Supreme Court upheld the constitutionality of the ACA in its entirety, ruling that Congress acted within its constitutional authority when enacting the individual mandate. The Court agreed that, while Congress could not use its power to regulate commerce between states to require individuals to buy health insurance, it could impose a tax penalty using its tax power for individuals who refuse to buy health insurance.

However, a 2017 tax reform bill, called the Tax Cuts and Jobs Act, reduced the ACA’s individual mandate penalty to zero, effective beginning in 2019. As a result, beginning in 2019, individuals will no longer be penalized for failing to obtain acceptable health insurance coverage.

Texas v. United States

Following the tax reform law’s enactment, 20 Republican-controlled states filed a lawsuit again challenging the ACA’s constitutionality. The plaintiffs, first, argued that the individual mandate can no longer be considered a valid tax, since there will no longer be any revenue generated by the provision.

In addition, in its 2012 ruling, the Supreme Court indicated(and both parties agreed) that the individual mandate is an essential element of the ACA, and that the remainder of the law could not stand without it. As a result, the plaintiffs argued that the elimination of the individual mandate penalty rendered the remainder of the ACA unconstitutional.

The U.S. Justice Department chose not to fully defend the ACA in court and, instead, 16 Democratic-controlled states intervened to defend the law.

Federal Court Ruling

In his ruling, Judge Reed O’Connor ultimately agreed with the plaintiffs, determining that the individual mandate can no longer be considered a valid exercise of Congressional tax power. According to the court,“[u]nder the law as it now stands, the individual mandate no longer ‘triggers a tax’ beginning in 2019.” As a result, the court ruled that “the individual mandate, unmoored from a tax, is unconstitutional.”

Because the court determined that the individual mandate is no longer valid, it now had to determine whether the provision is “severable” from the remainder of the law (meaning whether other portions of the ACA can remain in place or whether the entire law is invalid without the individual mandate).

In determining whether the remainder of the law could stand without the individual mandate, the court pointed out that “Congress stated three separate times that the individual mandate is essential to the ACA … [and that] the absence of the individual mandate would ‘undercut’ its’ regulation of the health insurance market.’ Thirteen different times, Congress explained how the individual mandate stood as the keystone of the ACA … [and,] ‘together with the other provisions’ [the individual mandate] allowed the ACA to function as Congress intended.” As a result, the court determined that the individual mandate could not be severed, making the ACA invalid in its entirety.

Impact of the Federal Court Ruling

Judge O’Conner’s ruling left many questions as to the current state of the ACA, because it did not order for anything to be done or stay the ruling pending appeal. However, this ruling is expected to be appealed, and the White House announced that the ACA will remain in place until a final decision is made. Many industry experts anticipate that the Supreme Court will likely take up the case, which means that a final decision will not be made until that time.

While these appeals are pending, all existing ACA provisionswill continue to be applicable and enforced. Although the individual mandatepenalty will be reduced to zero beginning in 2019, employers and individualsmust continue to comply with all other applicable ACA requirements. This rulingdoes not impact the 2019 Exchange enrollment, the ACA’s employer shared responsibility(pay or play) penalties and related reporting requirements, or any otherapplicable ACA requirement.

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