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Employers on Hook for Mental Health Parity Despite New Target

The US Department of Labor (DOL) is casting a skeptical guy on health insurance companies’ inconsistent coverage of mental health and substance use disorder benefits. The DOL recently commenced litigation against an insurer to require mental health and substance use disorder coverage be on par with regular physical care.

In an article in Bloomberg Law, McDermott Partner Judith Wethall said employers are usually unaware about these violations. Self-funded employers typically simply accept whatever their third-party administrator (TPA) is offering.

“Sometimes a TPA does things behind the scenes that might violate mental health parity and an employer might not even know it,” Wethall said.

Access the article.




Supreme Court Agrees to Review Medicare Payment Cuts to 340B Drugs

The US Supreme Court announced in July that it will take up review of the decision by the US Court of Appeals for the District of Columbia Circuit upholding Medicare’s 2018 payment cuts to 340B drugs. The case will be closely watched, given its potentially far-reaching impacts on reimbursements to most hospitals that participate in the Medicare program, not just those that participate in the 340B Program.

Read more here.




Premium Surcharges for the Unvaccinated Are Lawful Within Limits

Many plan administrators expressed bewilderment at the Biden administration’s recent guidance to limit vaccine incentive or surcharge programs for unvaccinated plan participants. According to this SHRM article, which features insight from McDermott Partner Judith Wethall, any premium surcharges must comply with the Health Insurance Portability and Accountability Act’s (HIPPA) nondiscrimination rules. HIPPA nondiscrimination rules allow for participatory and health-contingent permissible wellness programs.

Read more here.




FTC Issues Policy Statement Expanding Interpretation of Health Breach Notification Rule’s Scope

On September 15, 2021, the Federal Trade Commission (FTC) voted 3–2 along party lines (with Republican commissioners dissenting) to issue a policy statement announcing an expansive interpretation of the FTC’s Health Breach Notification Rule, 16 CFR Part 318 (the Rule). According to the policy statement, the Rule applies to health apps and connected devices that are not subject to the Health Insurance Portability and Accountability Act (HIPAA) but are capable of drawing information from multiple sources—for example, through a combination of consumer inputs and application programming interfaces (APIs).

Read more here.




The Questions Your Board’s Human Capital Committee Needs to Ask

What questions should a governing board’s human capital committee ask itself? According to this August 2021 e-book edited by McDermott Partner Michael Peregrine, committee members should regularly ask themselves questions about workforce strategy and engagement, outstanding litigation, talent pipeline and management strategy and human capital technology.

Access the e-book (Page 8).




Vaccine Requirements in the Workplace

As more and more private and public companies require vaccinations, employees are finding it increasingly difficult to avoid these mandates. In this BBC Radio 5 Live interview, McDermott Partner Michelle Strowhiro noted that US employers have a right to mandate vaccination for any employee that is in an employer’s office.

“As such, if an employee is violating that policy and is coming into an office unvaccinated, an employer can take action and terminate that employee,” Strowhiro said.

Access the audio.




$4 Billion in Pension Payments Returned

Even though it is the employer’s responsibility to track down former employees and let them know of leftover retirement benefits, it doesn’t always work out that way. In recent years, the US Department of Labor’s Employee Benefits Security Administration has demanded companies improve their methods for finding former workers.

In this article published by the Center for Retirement Research at Boston College, McDermott Partner Jeffrey M. Holdvogt said regulators “put a lot of pressure, in a good sense, on plan administrators to really up their games.” Holdvogt shared his comments in a May webinar hosted by the Pension Action Center at the University of Massachusetts, Boston.

Access the article.




50-State Survey | Rules Governing Telehealth Modalities and Patient-Provider Relationships

Telehealth’s state-by-state regulatory patchwork means that healthcare providers must navigate a variety of regulations that govern which types of care can be provided by virtual means, and even what modalities can be used in different care settings. McDermott’s recent 50-state survey explores the standard and requirements that physicians and nurse practitioners must follow when prescribing non-controlled substances or ordering tests via a telemedicine encounter. Key issues addressed in the survey include:

  • In what states are asynchronous solutions permitted?
  • What are state rules governing prescriptions when a physician-patient relationship does not exist prior to the telehealth encounter?
  • What are state rules on prescribing via audio-visual encounters or audio-only encounters?
  • Under what state regulations can a questionnaire be sufficient to create a physician-patient or advance practice registered nurse-patient relationship?

Access the survey.




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