America's Benefit Specialist July 2023

LEGISLATIVE AND COMPLIANCE ISSUES

provisions of the CAA (specifically Code section 9824, ERISA section 724 and PHSA § 2799A 9(a)(1)) generally prohibit plans and carriers from entering into agreements with providers, TPAs or other service providers that include such provisions. One example of a gag clause would be a contract between a group health plan and a TPA that states the plan will pay providers at designated “point of service rates,” but the TPA contractually prohibits the plan from disclosing the rates to participants. If a contract between a group health plan and TPA states that the plan sponsor’s access to provider-specific cost and quality-of-care information is only available at the TPA’s discretion, that would also constitute a gag clause. What it means for you: Make sure your employer groups understand their responsibilities related to attestation. The first Gag Clause Prohibition Compliance Attestation is due no later than December 31, 2023, but don’t wait! This require ment applies to employer groups of all sizes. Make sure your clients understand that there are no exceptions. The first attestation covers the period beginning Decem ber 27, 2020, (or the effective date of the applicable group health plan or health insurance coverage, if later) through the date of attestation. Employers should visit the official Gag Clause Prohibition Compliance Attestation website, https://hios.cms.gov/HIOS-GCPCA-UI, for instructions on how to submit. Subsequent attestations (covering the period since the last preceding attestation) are due by December 31 of each year thereafter. Moving forward, self-funded plans that are engaging new partners or carriers should carefully review contracts to en sure there are no gag clauses. MEDICAID UNWINDING In March 2020, as part of COVID-19 relief legislation, Congress provided increased Medicaid funding to states. States had to meet several conditions to receive the federal funds—collec tively called a Maintenance of Effort (MOE) requirement—as well as a “continuous coverage” requirement that prohibited states from terminating most Medicaid enrollees’ coverage until after the public health emergency ended. During the PHE, Medicaid agencies could not disenroll anyone from Medicaid unless the individual asked to be disenrolled, moved out of state or died. Continuous coverage allowed millions of people to stay covered without any inter ruption during the pandemic. Since the PHE ended in May 2023, states have begun “un winding”—the process by which states resume annual Med icaid-eligibility reviews. Medicaid agencies will first attempt to complete an automated renewal based on information available to them. If that is not possible, agencies then send renewal notices and requests for information to enrollees. When enrollees respond, agencies process the cases, renew coverage for those who remain eligible, and notify those who are no longer eligible that their coverage will end.

If enrollees don’t respond—because they don’t get the request for information due to having changed their address or phone number or they don’t understand what they are supposed to do, for example—their coverage will end. There are an estimated 90 million people enrolled in Med icaid today; all of them will need to be reviewed for eligibility during unwinding. Estimates are that 15 million to 18 million people will lose Medicaid coverage during this process. Up to 4 million individuals may be eligible for employer-based insurance plans, but others need to move to federal or state based exchanges, where they may be eligible for subsidies. The unwinding process could take 12 to 14 months in each state, with each state determining its own timeline. Because of this, a special enrollment period (through July 2024) allows affected individuals to enroll in an employer-based plan or the individual market. What it means for you: Visit Georgetown Universi ty’s 50-State Unwinding Tracker (https://ccf.georgetown. edu/2023/04/01/state-unwinding-tracker/) for a data dash board and links to individual state resources and timelines. Reach out to clients who may no longer qualify for Medicaid coverage to discuss their options for private health insurance or Medicare-related products. Each state is managing unwinding differently, so some current Medicaid enrollees may not realize they will be losing access to the program. As part of open-enrollment commu nications, employers may want to include information about Medicaid unwinding to prompt employees currently enrolled in Medicaid that they should elect company-sponsored ben efits during open enrollment rather than waiting until the state completes its review. RULING ON PREVENTATIVE CARE In March, a federal judge struck down a key provision of the ACA, ruling that certain aspects of the preventive care man date violate the Constitution. The legal challenge was brought by eight individuals and two businesses, all from Texas. They argued that the mandate for plans to cover drugs related to HIV prevention requires business owners and consumers to pay for services that are counter to their religious beliefs. YOUR CLIENTS ARE DEPENDING ON YOU TO HELP THEM STAY ON TOP OF KEY DEADLINES AND TO UNDERSTAND THEIR RESPONSIBILITIES WITH RESPECT TO CHANGING LEGISLATION AND LEGAL RULINGS.

14 ABS | benefitspecialistmagazine.com