A Medicare program designed to incentivize high-quality care via physician bonuses is in doubt as providers say it’s caused more trouble than it’s worth. According to this Axios article, the Merit-Based Incentive Payment System has created a disparity between bonus winners and losers, and this disparity is only expected to grow.
Despite a two-year-old ban on surprise medical billing, insurers and providers are struggling to resolve unpaid claims. In this Axios article, McDermott+Consulting’s Jeffrey Davis offers perspective on the state of the claims resolution process.
As more telehealth providers offer weight-loss programs, they should be aware of the potential impact of state laws and regulations. In this blog post, we examine how Florida’s consumer protection laws affect these programs.
On October 4, 2023, California Governor Gavin Newsom signed Senate Bill 616 into law, officially expanding the Healthy Workplaces, Healthy Families Act of 2014, California’s paid sick leave law. Effective January 1, 2024, California employers must begin providing eligible employees with at least five days or 40 hours of paid sick leave, increased from the previous minimum of three days or 24 hours. Employers with combined paid time off policies should review and update their policies as needed.
Numerous states—including Alaska, Wisconsin, Ohio and Oregon—have been busy finalizing rulemaking and legislation advancing hybrid healthcare models, modernizing licensure infrastructures and incentivizing telehealth. What have these states been up to over the last month?
In our last post, we considered some of the comment letters submitted in response to proposed regulations under the Mental Health Parity and Addiction Equity Act (MHPAEA) issued by the US Departments of Labor, Health and Human Services and the Treasury (the Departments). Our previous MHPAEA content is available here.
The comment period for the proposed regulations closed on October 17, 2023. Stakeholders submitted more than 7,500 comments. While we have not read them all, we’ve seen enough to discern the broad contours. There are those in favor, those opposed and those that take some middle ground with recommended modifications. Among the latter, the modifications run the gamut from trivial to substantive. One particular comment generally approving of the rule but urging modifications caught our attention. It was submitted by the Brookings Institution, and it offered the following (at least in our view) useful insights.
Heterogeneity of Mental Health/Substance Use Disorder (MH/SUD) Benefits Versus Medical/Surgical (M/S) Benefits
The comment explains that roughly 41% of M/S visits are for chronic conditions, which are less likely to be subject to concurrent review. In contrast, between 64% and 69% of MH/SUD visits focus on treatment of mood disorders, anxiety disorders, psychoses and personality disorders, i.e., chronic recurring conditions. The comment notes: “Even if all chronic visits in general medical practice were subject to concurrent review, any concurrent review for mental health or substance use disorder services would fail the ‘substantially all’ test.” (Emphasis added)
The comment recommends that the Departments consider a more fine-grained method of comparing the use of nonquantitative treatment limitations (NQTLs) between MH/SUD benefits and those for M/S benefits.
Schematic Representation of NQTLs (and Why This Matters)
The comment expresses concern over the depth of the analysis that is required for each NQTL. Page four provides a useful schematic that fleshes out the particulars. The schematic makes the point that a substantial amount of effort is involved in demonstrating compliance for a single NQTL. The steps include “identifying which services apply [ ], identifying factors considered in the design of the NQTL, identifying sources used to define these factors, and demonstrating that the NQTL is applied no more stringently to mental health and substance use disorder benefits than medical/surgical benefits.”
Moreover, all steps must be repeated for each additional NQTL. While even a casual review of the proposal would lead the reader with the sense that compliance would be a challenge, the use of the visual schematic drives the point home visually.
The Exception for Independent Professional Medical or Clinical Standards
The proposed rule identifies two exceptions to the NQTL requirements, the first of which is based on “Independent Professional Medical or Clinical Standards.” While there is a good deal of disagreement as to its proper scope and even its utility, the Brookings comment worries that “the language in the proposed rule also opens the door to regulatory gaming because it is overly broad.” According to the comment: “If the [...]
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On November 9, 2023, the Internal Revenue Service (IRS) announced cost-of-living adjustments to the applicable dollar limits for certain health and welfare plan benefits, including those for health flexible spending arrangements and commuter benefit plans, among other important updates. Employers, many of whom are in the midst of or have already completed open enrollment for 2024, will need to review these limits as soon as possible. Employer action may include, for example, determining whether enrollment portal updates and communications to participants are necessary. For employees who have already made 2024 elections without the benefit of the new dollar limits, employers may need to reach out to these employees to inform them of the new amounts and consider implementing a new election window.
Asserting that many employers have improperly claimed Employee Retention Tax Credit (ERTC) refunds, the Internal Revenue Service (IRS) released two new announcements that address ERTC claims. Following these new IRS announcements, most employers should consult their legal and tax advisors and consider filing protective refund claims to preserve their employment and income tax positions and to defend against potential IRS penalties and interest.
We continue our investigation of proposed regulations under the Mental Health Parity and Addiction Equity Act (MHPAEA) issued by the US Departments of Labor, Health and Human Services and the Treasury (the Departments). Our previous MHPAEA content is available here.
The comment period for the proposed regulations closed on October 17, 2023, and one thing is clear: Stakeholders are divided not so much over particulars of the proposal but rather on the broad scope and reach of the rule. The is no doubt that the rule is intended to enact an overarching policy goal of the Biden administration. One need look no further than the administration’s July 25, 2023, fact sheet, which touts the administration’s “comprehensive national strategy to transform how mental health is understood, accessed, treated, and integrated in and out of health care settings.” Nor is there any doubt that the proposed rule is granular and prescriptive, as we previously explained.
While many of the comment letters address the particulars of the rule, certain high-profile comments ask whether it should be adopted at all. On one side are the providers (see the American Hospital Association’s comments, which offer a full-throated endorsement of the rule); on the other are the carriers (see AHIP’s comments, which claim the rule is vague and impossible to administer and calls for its withdrawal.)
If the final rule looks anything like the proposal, there will be a challenge, the particulars of which will likely include one central question: Is the final rule consistent with Congress’ intent in the matter? Dueling comments by the majority and minority members of the House of Representatives Committee on Education and the Workforce and (in the case of the minority) the Subcommittee on Health, Employment, Labor, and Pensions frame the question as follows:
Comment letter of Virginia Foxx, Chairwoman, Committee on Education and the Workforce
Citing MHPAEA’s legislative history, the majority claims that “Congress did not intend to include NQTLs [nonquantitative treatment limitations] when enacting the MHPAEA.” According to the comment letter, “the [MHPAEA] Committee report does not contain one mention of an NQTL.” (While the letter refers to the “Consolidated Appropriations Act, 2021 (CAA),” it does not attach any significance to that law’s requirement for plans and issuers to prepare and furnish on-demand reports detailing their NQTL compliance.) The majority also expresses its view that measuring and analyzing outcomes data is both impractical and exceeds the scope of the law. The majority is perplexed that the Departments believe they have the authority “to require plans to measure outcomes data stems from the statutory language.”
Comment letter of Bobby Scott, Ranking Member, Committee on Education and the Workforce, and Mark DeSaulnier, Ranking Member, Subcommittee on Health, Employment, Labor, and Pensions.
The minority’s comments welcome the proposed rules’ “emphasis on access to behavioral health care” and make the claim that the imposition of rules governing NQTLs is “entirely consistent with the statutory [...]
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The recent decision in Ponticelli Limited v Gallagher provides a salient reminder that the right to participate in a share incentive plan can transfer to a new employer under the Transfer of Undertakings (Protection of Employment) Regulations. The right applies even if the employee’s right to participate in the plan arose outside of the contract of employment. The employee will be treated as a leaver under their old employer/transferor’s scheme, and the transferee employer must then provide a scheme of substantial equivalence for the employee to participate in post-transfer.
While this is a Scottish case, the decision is binding on the employment tribunals throughout the UK.
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