Vast Majority of Enrollees for Health Care through Exchanges are Obtaining Premium Assistance

January 5, 2015 at 1:53 pm | Posted in Affordable Care Act, Health Insurance Exchanges, Health Insurance Marketplace, HHS | Leave a comment
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Last week, HHS released a report on Affordable Care Act enrollment data via the state and federal Healthcare Marketplaces/Exchanges. It is reported that approximately 87 percent of people who selected health insurance plans through for coverage beginning Jan. 1, 2015 were determined eligible for financial assistance to lower their monthly premiums, compared to 80 percent of enrollees who selected plans over a similar period last year. In addition, more than 4 million people in both the state and federal Marketplaces signed up for the first time or reenrolled in coverage for 2015 during the first month of open enrollment. That includes more than 3.4 million people who selected a plan in the 37 states that are using the platform for 2015, and more than 600,000 consumers who selected plans in the 14 states that are operating their own Marketplace platform for 2015.


A complete copy of the HHS Release can be found here: 87 Percent of Those Who Selected 2015 Plans in First Month of Open Enrollment Are Getting Subsidies


U.S. Supreme Court to Hear Challenge to ACA Exchanges and Subsidies on March 4th

December 30, 2014 at 10:00 am | Posted in Affordable Care Act | Leave a comment
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The U.S. Supreme Court will hear oral arguments on March 4th in the matter of David King et al. vs. Sylvia Burwell. The case examines whether the provisions in the ACA that created the public exchange system and the premium subsidy tax credits allow the federal exchanges (As opposed to state-run exchanges) run by the U.S. Department of Health and Human Services offer access to the tax credits and premium subsidies. The challengers assert that the ACA only permits state-based exchanges to offer the tax credits.

The 4th U.S. Circuit Court of Appeals ruled 3-0 in July on the King case that the ACA is so unclear that it does not indicate whether the HHS-run exchanges can offer the subsidies or tax credits but that another provision gives the HHS secretary the right to resolve ambiguous exchange program provisions.

The D.C. U.S. Circuit Court of Appeals ruled on the same day, however, in a similar case, Halbig et al. vs. Burwell et al., that the ACA’s statutory text clearly makes the subsidies available only through state-based exchanges. Notwithstanding the difference of opinions in the legal camps, there is a strong consensus that should the Supreme Court side with the D.C. Circuit Court of Appeals, the ACA’s exchanges and premium subsidy structure could unravel, and with it the penalties associated with the employer mandate. A decision is expected by late June 2015.

Federal Government Issues New “Proposed” Guidance and Modifications on SBC Regulations

December 29, 2014 at 11:28 am | Posted in Federal Laws, Regulations | Leave a comment
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Federal Government Issues New “Proposed” Guidance and Modifications on SBC Regulations with Proposed Effective Date of September 1, 2015

    Last week DOL, Treasury and HHS (“the Departments”), issued 127 pages of proposed regulations, as well as a new set of proposed SBC templates, instructions, an updated uniform glossary, and other materials to incorporate some of the feedback “the Departments” received regarding the SBC regulations and the SBC template. “The Departments” stated that the proposals will provide guidance necessary to self insured plans and health insurers as they continue to issue SBCs, and will improve the SBC for employers, participants and beneficiaries, and individuals and dependents for use as a tool in making important decisions regarding their health coverage.

The proposed modifications clarify when and how a self insured plan or health insurer must provide an SBC, and streamline and shorten the SBC template while also adding certain additional elements that “the Departments” believe will be useful to consumers.

“The Departments” have invited public comments on the proposals until 60 days following December 30th. These proposals are not final and the proposed effective date is September 1, 2015.


The draft updated template, instructions, and supplementary materials are available at the following links:


Supreme Court to Hear Legal Challenge Federal Subsidies and Obamacare in March

December 23, 2014 at 10:53 am | Posted in Affordable Care Act, Health Care, Regulations | Leave a comment
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Supreme Court to Hear Legal Challenge Federal Subsidies and Obamacare in March

The  Supreme Court announced that on  March 4th it will hear arguments in King v. Burwell.  The case addresses the concept of statutory construction and the issue of whether  the federal government can legally hand out healthcare subsidies in 34 states that have federal exchanges since they opted out of creating their own state based exchanges. The plaintiffs  filed their opening brief on Monday which advance the argument that the literal text of the ACA does not allow for subsidies at federal exchanges. If the subsidy arrangement is struck down, the ACA will essentially have two different sets of requirements and risks for employers and employees across the country that will turn on their state of residence. In November the Supreme Court announced that it would take up the case, surprising many court-watchers and healthcare experts, since the matter had yet to be heard on reconsideration by a full en banc panel of judges in the D.C. Circuit Court of Appeals. An earlier 3 judge panel had found the subsidies to be unauthorized under the ACA..

A copy of the plaintiff’s129 page  brief can be found here:  129-page document

Two Individual Fiduciaries Liable for Payment of $4.7 Million for Bilking Welfare Benefit Plan

December 12, 2014 at 10:59 am | Posted in Employment Law, ERISA, Essential Health Benefits | Leave a comment
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 Two Individual Fiduciaries Liable for Payment of $4.7 Million for Bilking Welfare Benefit Plan;

 Lawsuit was filed 9 years ago.


The DOL issued the following announcement yesterday:

CHERRY HILL, N.J. – A federal judge has found the fiduciaries of a defunct national multi-employer benefit plan based in Cherry Hill, are liable for approximately $4.7 million in assets that were improperly diverted. James Doyle and Cynthia Holloway, fiduciaries to the Professional Industrial Trade Workers Union Health and Welfare Fund, must make restitution to the plan, with interest, for violating the Employee Retirement Income Security Act.

The decision resolves a lawsuit filed by the U.S. Department of Labor in 2005 and subsequent legal proceedings stemming from an investigation conducted by the department’s Employee Benefits Security Administration.

“Doyle used this benefit plan as the guise for an illegal moneymaking scheme that jeopardized the well-being of countless workers and their families.  Holloway was in a position to put an end to the fraud, but failed to act,” said Assistant Secretary of Labor for Employee Benefits Security Phyllis C. Borzi. “The department’s persistence in pursuing this case through an appeal should send a message to those who think they can get away with conducting such an outlandish scheme.”

The court determined that Doyle and others used the fake Professional Industrial Trade Workers Union as a front for a scheme to operate a purported, union-sponsored employee benefit plan.  To obtain medical benefits from the plan, employers and workers across the United States were required to join the phony union and make payments.  Rather than use the funds to pay out health care benefits and pay reasonable costs of administration, most of the payments were used to cover bogus expenses including “union dues.” While Doyle diverted money that should have been used to pay benefits, Holloway failed to act as a prudent and loyal fiduciary by failing to put a stop to the scheme.

The court also found that the defendants marketed and ran the health plan in violation of federal law when they failed to administer the fund’s assets for the exclusive purpose of providing benefits to the fund’s participants and beneficiaries.

Filed in the U.S. District Court for the District of New Jersey, the decision permanently bars Doyle and Holloway from serving as a fiduciary or service provider to any ERISA-covered employee benefit plan, and appoints an independent fiduciary to administer and ultimately terminate the plan.  At its height, the plan had approximately 2,500 participants.

The investigation was conducted by the EBSA Philadelphia Regional Office. The case was litigated by the New York Regional Office of the Solicitor and the department’s Division of Plan Benefits Security.

Workers participating in employer-sponsored health and retirement benefit plans, who feel that they have been denied a benefit appropriately or have questions about benefits laws, can contact an EBSA benefits advisor by or calling 866-444-EBSA (3272).

Massachusetts: New $254 Million Health Exchange Website is working

November 18, 2014 at 2:30 pm | Posted in Affordable Care Act, Health and Human Services, Health Care, Health Insurance Marketplace, HHS, Medical, Wellness | Leave a comment
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by Steve LeBlanc, Associated Press

BOSTON (AP) — Massachusetts officials are reporting a successful weekend launch of the state’s revamped health insurance website, but cautioned of possible “hiccups” in the system with expected heavier traffic during the week.

Officials said Monday that in the first two days of the new federal open enrollment period, nearly 5,000 eligible people were immediately registered for state Medicaid coverage.

Nearly 7,000 others were able to complete the process of determining eligibility for plans that comply with the federal Affordable Care Act. They still need to review those insurance plans, choose one, and make their first month’s premium payment.

The successful rollout was in sharp contrast to a year ago, when a failed health exchange forced the state to place hundreds of thousands of residents into temporary Medicaid coverage and led to a costly overhaul of the website. The website woes were also an embarrassment for the state that provided a blueprint for the federal health care law.

Maydad Cohen, a special assistant to Gov. Deval Patrick, said Monday that the new website has proven stable and reliable — handling more than 57,000 visitors over the first two days of open enrollment.

“During the weekend we saw excellent performance of the website,” Cohen told reporters Monday. “We had a very successful, very exciting weekend.”

Of the nearly 7,000 people deemed eligible to obtain insurance through the state’s health insurance exchange during the weekend, about 3,600 individuals and families already have selected a plan and 137 already have paid their first month’s premium, state Health Connector officials said.

Those numbers will continue to climb as more people sign up for insurance.
Hundreds of call representatives also are assisting those looking to sign up for coverage, having trouble with the website or are unsure how to use it.

Cohen said one of the main reasons for high call wait times is that many of those seeking one-on-one help want to go through the entire application on the phone, something that can take 45 minutes or more per application.

Cohen urged those seeking to sign up for coverage to try the website first.

As a result of the previous website troubles, the state ended up putting more than 400,000 individuals into temporary subsidized insurance programs, including MassHealth, the state’s Medicaid program.

Secretary of Health and Human Services, John Polanowicz said between 175,000 and 225,000 of those were expected to enroll in new coverage, including through MassHealth.

Polanowizc said the number is lower than the 400,000 because of what he called the natural “churn” of subsidized care, with individuals losing their eligibility because they’ve found a job that offers insurance, or have obtained health care through a spouse, or have moved out of state.

Dec. 23 is the deadline to ensure coverage that starts on Jan. 1. Fixing the website hasn’t been cheap. The original cost of Massachusetts’ website was estimated at $174 million. That has jumped to $254 million.

Transitional Reinsurance Deadline Extended To December 5, 2014

November 17, 2014 at 2:46 pm | Posted in CMS, Compliance, Uncategorized | Leave a comment
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This past Friday, CMS extended the deadline for contributing entities to submit their 2014 enrollment counts for the transitional reinsurance program contributions.  The deadline has now been extended until 11:59 p.m. on December 5, 2014.  The January 15, 2015 and November 15, 2015 payment deadlines remain the same.

Click Here for the CMS announcement.

IRS Increases PCORI Fee from $2.00 to $2.08 for Plan Years Ending After October 1, 2014 and Before October 1, 2015

September 19, 2014 at 11:15 am | Posted in HHS, IRS, PCORI | Leave a comment
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In IRS Notice 2014-15, the agency announced an increase in the Patient Centered Outcome Research Institute (PCORI) Fee from $2.00 to $2.08 for policy years and plan years that end on or after October 1, 2014, and before October 1, 2015. The increase will be directly relevant to self insured clients and fully insured clients who have an HRA. The increase was driven by an adjustment to the percentage increase in the projected per capita amount of the National Health Expenditures published by HHS on September 3, 2014.  The PCORI fee is effective for policy and plan years ending after Sept. 30, 2012, and before Oct. 1, 2019.

A link to IRS Notice 2014-15 is here:

Text of IRS Notice 2014-56: Adjusted Applicable Dollar Amount for PCORI Fee (PDF)

HHS Provides Guidance on HIPAA Privacy Rule and Same Sex Marriages

September 18, 2014 at 8:57 am | Posted in Defense of Marriage Act (DOMA), HIPAA, Marriage, Same Sex Marriage | Leave a comment
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On September 17th HHS formally announced that in light of the Supreme court’s decision in United States v. Windsor. HIPAA privacy protection rights and privileges were expanded to same sex married couples regardless of where they live. The announcement follows:

The HIPAA Privacy Rule contains several provisions that recognize the integral role that family members, such as spouses, often play in a patient’s health care.  For example, the Privacy Rule allows covered entities to share information about the patient’s care with family members in various circumstances.  In addition, the Privacy Rule provides protections against the use of genetic information about an individual, which includes certain information about family members of the individual, for underwriting purposes.  This guidance addresses the effect of the 2013 Supreme Court decision regarding the Defense of Marriage Act (DOMA) on these provisions.

In United States v. Windsor, the Supreme Court held section 3 of DOMA to be unconstitutional. Section 3 of DOMA had provided that federal law would recognize only opposite-sex marriages.  In light of the Windsor ruling, covered entities (and business associates, as applicable) must consider the following regarding lawfully married same-sex spouses and same-sex marriage.

At 45 CFR 160.103, the Privacy Rule includes the terms spouse and marriage in the definition of family member.  Consistent with the Windsor decision, the term spouse includes individuals who are in a legally valid same-sex marriage sanctioned by a state, territory, or foreign jurisdiction (as long as, as to marriages performed in a foreign jurisdiction, a U.S. jurisdiction would also recognize the marriage).  The term marriage includes both same-sex and opposite-sex marriages, and family member includes dependents of those marriages.  All of these terms apply to individuals who are legally married, whether or not they live or receive services in a jurisdiction that recognizes their marriage.

  • The definition of a family member is relevant to the application of §164.510(b) Standard: Uses and disclosures for involvement in the individual’s care and notification purposes.  Under certain circumstances, covered entities are permitted to share an individual’s protected health information with a family member of the individual.  Legally married same-sex spouses, regardless of where they live, are family members for the purposes of applying this provision.
  • The definition of a family member is also relevant to the application of §164.502(a)(5)(i), Use and disclosure of genetic information for underwriting purposes.  This provision prohibits health plans, other than issuers of long-term care policies, from using or disclosing genetic information for underwriting purposes. For example, such plans may not use information regarding the genetic tests of a family member of the individual, or the manifestation of a disease or disorder in a family member of the individual, in making underwriting decisions about the individual.  This includes the genetic tests of a same-sex spouse of the individual, or the manifestation of a disease or disorder in the same-sex spouse of the individual.

This guidance was developed to assist covered entities in understanding how the Windsor decision may affect certain of their Privacy Rule obligations.  In the coming months, the Office of Civil Rights (OCR) intends to issue additional clarifications through guidance or to initiate rulemaking to address same-sex spouses as personal representatives under the Privacy Rule.

The D.C. Circuit Court of Appeals Agrees to Rehear ACA State/Federal Exchange Argument: The Obama Administration Gets a Second Bite at the Apple

September 4, 2014 at 12:47 pm | Posted in Affordable Care Act, Health Insurance Exchanges | Leave a comment
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The D.C. Circuit Court of Appeals has agreed to rehear argument and revisit its earlier ruling striking down Affordable Care Act (ACA) subsidies issued through federal exchanges as opposed to state exchanges. The announcement of the second hearing is a procedural victory for the Obama administration, which suffered a defeat in late July when a three-judge panel voted 2-1 that subsidies issued through federal exchanges were not allowed under the ACA. The two judges voting to strike down the subsidy language were appointed by a Republican President. A decision by the full D.C. appellate court (11 judges), in which Democratic appointees outnumber Republican appointee, is scheduled for oral argument on December 17.


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