Lance's Corner

Affordable Care Act Implementation FAQs

Apr 4, 2024

The United States Department of Labor’s Employee Benefits Security Administration has issued the following:

Affordable Care Act Implementation FAQs

FAQ about Affordable Care Act Implementation Part 66

Set out below is a Frequently Asked Question (FAQ) regarding implementation of certain provisions of the Affordable Care Act (ACA).  This FAQ has been prepared jointly by the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments).  Like previously issued FAQs (available at: https://www.dol.gov/agencies/ebsa/ laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/aca-implementation-faqs and http://www.cms.gov/cciio/resources/fact-sheets-and-faqs/index.html, this FAQ answers a question from stakeholders to help people understand the law and promote compliance.

Prohibition on Lifetime and Annual Limits and Annual Limitation on Cost Sharing

Public Health Service Act (PHS Act) section 2711, as added by the ACA, generally prohibits group health plans and health insurance issuers offering group or individual health insurance coverage from imposing lifetime and annual dollar limits on essential health benefits (EHB), as defined under section 1302(b) of the ACA.(1) Under the ACA, self-insured group health plans and large group market plans are not required by PHS Act section 2707(a) to offer EHB; however, to the extent these plans cover EHBs, they must comply with the annual and lifetime prohibitions under PHS Act section 2711. Final regulations implementing PHS Act section 2711 provide that, for plan years beginning on or after January 1, 2020, a plan or issuer that is not required to provide EHB must define EHB, for purposes of the prohibition on lifetime and annual limits, in a manner consistent with an EHB-benchmark plan selected by a State in accordance with 45 CFR 156.111, including coverage of any additional required benefits that are considered EHB consistent with 45 CFR 155.170(a)(2).(2)

PHS Act section 2707(b), as added by the ACA, provides that non-grandfathered group health plans, including non-grandfathered self-insured and non-grandfathered insured small and large group market health plans, shall ensure that any annual cost sharing imposed under the plan does not exceed the limitations provided for under ACA section 1302(c)(1).(3) Under ACA section 1302(c)(1), an enrollee's cost sharing for a plan year for EHB is limited. This annual limitation on cost sharing also applies to non-grandfathered health insurance coverage offered in the individual and small group market through the EHB requirements of PHS Act section 2707(a). The Departments have previously issued FAQs addressing the annual limitation on cost-sharing.(4)

In the proposed HHS Notice of Benefit and Payment Parameters (NBPP) for 2025 (proposed 2025 NBPP),(5) HHS proposed to amend 45 CFR 156.122 to codify that prescription drugs in excess of those covered by a State's EHB-benchmark plan are considered EHB. Because they are EHB, benefits for those prescription drugs would be subject to EHB protections, including the annual limitation on cost sharing and the prohibition on lifetime and annual limits, unless the coverage of the drug is mandated by State action and is in addition to EHB pursuant to 45 CFR 155.170, in which case the drug will not be considered EHB. HHS stated this policy in the preamble to the 2013 Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation Final Rule(6) and the final HHS NBPP for 2016,(7) and therefore HHS was of the view that this policy was clearly understood by issuers. However, comments received in response to the EHB Request for Information(8) issued in 2022 included a significant number of requests from interested parties to clarify the applicability of this policy in rulemaking, particularly as it relates to some plans in the individual, small group, and large group markets that have developed programs to provide coverage of some drugs as "non-EHB," outside of the terms of the rest of the coverage. After consideration of comments on the proposed 2025 NBPP, HHS is finalizing the amendment to 45 CFR 156.122 in the final HHS NBPP for 2025 (final 2025 NBPP) with respect to issuers of non-grandfathered individual and small group market plans that are subject to the requirement to provide EHB.

Some commenters on the proposed 2025 NBPP stated that the final rule should make clear whether this policy applies to large group market and self-insured plans. The Departments are issuing this FAQ to address the applicability of this provision in the final 2025 NBPP to self-insured group health plans and large group market plans for purposes of the prohibition on lifetime and annual limits under PHS Act section 2711 and the annual limitation on cost sharing under PHS Act section 2707(b).

Q: Does the policy in the final 2025 NBPP, which provides that prescription drugs in excess of those covered by a State's EHB-benchmark plan are considered EHB, apply to large group market coverage and self-insured plans defining EHB for purposes of the prohibition on lifetime and annual limits under PHS Act section 2711 and the annual limitation on cost sharing under PHS Act section 2707(b)?

As explained in the preamble to the final 2025 NBPP (issued contemporaneously with this FAQ), the proposed 2025 NBPP primarily addressed the application of this policy with respect to issuers of non-grandfathered individual and small group market plans subject to the requirement to provide EHB. The final 2025 NBPP does not address the application of this policy to large group market health plans and self-insured group health plans. The Departments understand the questions raised by commenters with respect to large group market health plans and self-insured group health plans and intend to address the applicability of this policy to those plans in future notice-and-comment rulemaking. Specifically, the Departments intend to propose rulemaking that would align the standards applicable to large group market health plans and self-insured group health plans with those applicable to individual and small group market plans, so that all group health plans and health insurance coverage subject to sections 2711 and 2707(b) of the PHS Act, as applicable, would be required to treat prescription drugs covered by the plan or coverage in excess of the applicable EHB-benchmark plan as EHB for purposes of the prohibition of lifetime and annual limits and the annual limitation on cost sharing, which would further strengthen the consumer protections in the ACA.

Footnotes

 

USDOL Issues Comprehensive Employer Guidance on Long COVID

The United States Department of Labor (USDOL) has issued a comprehensive set of resources that can be accessed below for employers on dealing with Long COVID.

Supporting Employees with Long COVID: A Guide for Employers

The “Supporting Employees with Long COVID” guide from the USDOL-funded Employer Assistance and Resource Network on Disability Inclusion (EARN) and Job Accommodation Network (JAN) addresses the basics of Long COVID, including its intersection with mental health, and common workplace supports for different symptoms.  It also explores employers’ responsibilities to provide reasonable accommodations and answers frequently asked questions about Long COVID and employment, including inquiries related to telework and leave.

Download the guide

Accommodation and Compliance: Long COVID

The Long COVID Accommodation and Compliance webpage from the USDOL-funded Job Accommodation Network (JAN) helps employers and employees understand strategies for supporting workers with Long COVID.  Topics include Long COVID in the context of disability under the Americans with Disabilities Act (ADA), specific accommodation ideas based on limitations or work-related functions, common situations and solutions, and questions to consider when identifying effective accommodations for employees with Long COVID.  Find this and other Long COVID resources from JAN, below:

Long COVID, Disability and Underserved Communities: Recommendations for Employers

The research-to-practice brief “Long COVID, Disability and Underserved Communities” synthesizes an extensive review of documents, literature and data sources, conducted by the USDOL-funded Employer Assistance and Resource Network on Disability Inclusion (EARN) on the impact of Long COVID on employment, with a focus on demographic differences.  It also outlines recommended actions organizations can take to create a supportive and inclusive workplace culture for people with Long COVID, especially those with disabilities who belong to other historically underserved groups.

Read the brief

Long COVID and Disability Accommodations in the Workplace

The policy brief “Long COVID and Disability Accommodations in the Workplace” explores Long COVID’s impact on the workforce and provides examples of policy actions different states are taking to help affected people remain at work or return when ready.  It was developed by the National Conference of State Legislatures (NCSL) as part of its involvement in USDOL’s State Exchange on Employment and Disability (SEED) initiative.

Download the policy brief

Understanding and Addressing the Workplace Challenges Related to Long COVID

The report “Understanding and Addressing the Workplace Challenges Related to Long COVID” summarizes key themes and takeaways from an ePolicyWorks national online dialogue through which members of the public were invited to share their experiences and insights regarding workplace challenges posed by Long COVID.  The dialogue took place during summer 2022 and was hosted by USDOL and its agencies in collaboration with the Centers for Disease Control and Prevention and the U.S. Surgeon General.

Download the report

Working with Long COVID

The USDOL-published “Working with Long COVID” fact sheet shares strategies for supporting workers with Long COVID, including accommodations for common symptoms and resources for further guidance and assistance with specific situations.

Download the fact sheet

COVID-19: Long-Term Symptoms

This USDOL motion graphic informs workers with Long COVID that they may be entitled to temporary or long-term supports to help them stay on the job or return to work when ready, and shares where they can find related assistance.

Watch the motion graphic

A Personal Story of Long COVID and Disability Disclosure

In the podcast “A Personal Story of Long COVID and Disability Disclosure,” Pam Bingham, senior program manager for Intuit’s Diversity, Equity and Inclusion in Tech team, shares her personal experience of navigating Long COVID symptoms at work.  The segment was produced by the USDOL-funded Partnership on Employment and Accessible Technology (PEAT) as part of its ongoing “Future of Work” podcast series.

Listen to the podcast

HHS OIG Issues Annual Report on State MFCUs

Per the notice below, the Office of the Inspector General (OIG) of the United States Department of Health and Human Services (HHS) has issued its annual report on the performance of state Medicaid Fraud Control Units (MFCUs).

Medicaid Fraud Control Units Fiscal Year 2023 Annual Report (OEI-09-24-00200) 

Medicaid Fraud Control Units (MFCUs) investigate and prosecute Medicaid provider fraud and patient abuse or neglect. OIG is the Federal agency that oversees and annually approves federal funding for MFCUs through a recertification process. This new report analyzed the statistical data on annual case outcomes—such as convictions, civil settlements and judgments, and recoveries—that the 53 MFCUs submitted for Fiscal Year 2023.  New York data is as follows:

Outcomes

  • Investigations1 - 556
  • Indicted/Charged - 9
  • Convictions - 8
  • Civil Settlements/Judgments - 28
  • Recoveries2 - $73,204,518

Resources

  • MFCU Expenditures3 - $55,964,293
  • Staff on Board4 - 257

1Investigations are defined as the total number of open investigations at the end of the fiscal year.

2Recoveries are defined as the amount of money that defendants are required to pay as a result of a settlement, judgment, or prefiling settlement in criminal and civil cases and may not reflect actual collections.  Recoveries may involve cases that include participation by other Federal and State agencies.

3MFCU and Medicaid Expenditures include both State and Federal expenditures.

4Staff on Board is defined as the total number of staff employed by the Unit at the end of the fiscal year.

Read the Full Report

View the Statistical Chart

Engage with the Interactive Map

GAO Issues Report on Medicaid Managed Care Service Denials and Appeal Outcomes

The United States Government Accountability Office (GAO) has issued a report on federal use of state data on Medicaid managed care service denials and appeal outcomes.  GAO found that federal oversight is limited because it doesn't require states to report on Medicaid managed care service denials or appeal outcomes and there has not been much progress on plans to analyze and make the data publicly available.  To read the GAO report on federal use of state data on Medicaid managed care service denials and appeal outcomes, use the first link below.  To read GAO highlights of the report on federal use of state data on Medicaid managed care service denials and appeal outcomes, use the second link below.
https://www.gao.gov/assets/d24106627.pdf  (GAO report on federal use of state data on Medicaid managed care service denials and appeal outcomes)
https://www.gao.gov/assets/d24106627_high.pdf  (GAO highlights on federal use of state data on Medicaid managed care service denials and appeal outcomes)

CMS Issues Latest Medicare Regulatory Activities Update

The Centers for Medicare and Medicaid Services (CMS) has issued its latest update on its regulatory activities in the Medicare program.  While dentistry is only minimally connected to the Medicare program, Medicare drives the majority of health care policies and insurance reimbursement policies throughout the country.  Therefore, it always pays to keep a close eye on what CMS is doing in Medicare.  To read the latest CMS update on its regulatory activities in Medicare, use the link below.
https://www.cms.gov/training-education/medicare-learning-network/newsletter/2024-03-14-mlnc