The Resurgence of Provider-Sponsored Health Plans in the New Health Care Ecosystem

To adapt to the evolving healthcare landscape, health systems are seeking to identify alternatives to their traditional hospital-centric models and shift towards patient-centered care delivery. As a result, provider-sponsored health plans (PSHPs) are gaining traction as a potential framework for health systems to curate care delivery in the newly decentralized model of healthcare.

In this article, Brad Dennis and Gary Scott Davis explore the challenges facing the hospital-centric model, the reemergence of PSHPs and the advantages of integrating healthcare delivery and insurance functions in a PSHP-based model.

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It’s the Plan Assets, Stupid: Why Group Medical Stop-Loss Captives and Level-Funded Plans Don’t Mix

A question in response to last week’s post on self-funding of employer group health plans assumed that stop-loss coverage under a level-funded plan could be provided under a group captive medical captive. However, it cannot (at least not without first obtaining a prohibited transaction exemption from the US Department of Labor (DOL)). While group medical stop-loss coverage can be structured to avoid the Employee Retirement Income Security Act (ERISA) prohibited transaction rules by scrupulously avoiding contact with ERISA plan assets in the plan’s stop-loss layer, it is not possible to prevent such contact in level-funded products.

The early years of group captives saw no shortage of handwringing over fundamental compliance issues. For example: Are group captives multiple employer welfare arrangements (MEWAs) (and should they be regulated as such)? To what extent are states free to constrain or restrain their operation? And which state insurance licensing laws apply?

For the most part, these and other compliance-related questions have been answered, if not completely, then at least substantially so. There is now broad agreement that the group medical stop-loss captive rests on a sound legal and regulatory foundation, which we explained at length in our Special Report. When properly structured, they are not MEWAs; states are free to regulate the stop-loss policy, and the fronting carrier must be licensed in each state in which the captive operates (i.e., where plan participants reside). Critical to their operation, however, is that the group medical stop-loss captive itself does not traffic in plan assets. This means that participant contributions, which are always plan assets, must never be applied to the purchase of stop-loss coverage.

The treatment of stop loss premiums, and their status as plan assets, are set out in two DOL Advisory Opinions:

Advisory Opinion 92-02

A stop-loss insurance policy purchased by an employer sponsoring a self-insured welfare benefit plan to which employees did not contribute is not an asset of the plan if certain conditions are satisfied. These conditions include that the insurance proceeds from the policies are payable only to the plan sponsor, which is the named insured under the policy, and no representations are made that the policy will be used to pay benefits.

Advisory Opinion 2015-02A

Where a stop-loss policy is purchased by a plan that includes participant contributions, the stop-loss policy would not be a plan asset if the facts surrounding the purchase of the stop-loss policy satisfies Advisory Opinion 92-02 and if the employer puts in place an accounting system that ensures that the payment of premiums for the stop-loss policy includes no employee contributions. Also, the stop-loss policy must reimburse the plan sponsor only if the plan sponsor pays claims under the plans from its own assets so that the plan sponsor will never receive any reimbursement from the insurer for claim amounts paid with participant contributions.

In the above-cited Special Report, we provided the following example of how an employer might comply where, as is typically the case, the [...]

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FTC Amends Health Breach Notification Rule to Regulate Health Apps and Expand Breach Notification Requirements

On April 26, 2024, the Federal Trade Commission (FTC) issued a final rule to amend its Health Breach Notification Rule (HBN Rule). The HBN Rule works as a compliment and counterpart to the breach notification requirements established under the Health Insurance Portability and Accountability Act (HIPAA) for HIPAA-regulated entities. Specifically, the HBN Rule requires that vendors of personal health records (PHRs) and related entities that are not covered by HIPAA notify individuals, the FTC and, in some cases, media outlets of a breach of unsecured personally identifiable health data. Stakeholders should carefully review the final rule to understand how organizations will be impacted.

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State Regulators Address Insurers’ Use of AI: 11 States Adopt NAIC Model Bulletin

In December 2023, the National Association of Insurance Commissioners (NAIC) adopted a Model Bulletin on the Use of Artificial Intelligence (AI) Systems by Insurers. The model bulletin reminds insurance carriers that they must comply with all applicable insurance laws and regulations (e.g., prohibitions against unfair trade practices) when making decisions that impact consumers, including when those decisions are made or supported by advanced technologies, such as AI systems. To date, 11 states have adopted the model bulletin, thereby applying the standards to insurers that operate in the states.

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NQDC Complications and Best Practices

A nonqualified deferred compensation (NQDC) plan is a powerful employee benefits tool. However, NQDC plans can create complications for plan administrators and participants. In this PLANADVISER article, Brian Tiemann and Lisa Loesel highlight several potential NQDC plan pitfalls and offer strategies to mitigate these hazards.

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