June 27, 2022

Compliance Update

Transparency in Coverage & Machine-Readable Files, Forms 5500 and 5500-SF, Roe vs. Wade, and FAQs for Mental Health/FMLA.

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Transparency in Coverage Final Rules


What it is: The Transparency in Coverage Final Rules (the “TiC Final Rules”) require non-grandfathered group health plans and health plan providers offering coverage to non-grandfathered groups and individual markets to disclose machine-readable files (MRFs) for:

– In-network provider rates for covered items and services; and

– Out-of-network allowed amounts and billed charges for covered items and services.

Status: Enforcement for the MRFs begins July 1st, 2022. The DOL issued an update in FAQ 49 which has postponed the Rx file requirement until further notice.

What you need to know:

– As https://www.govinfo.gov/content/pkg/FR-2021-11-23/pdf/2021-25183.pdf states, the Departments will not initiate enforcement action against a plan or issuer that does not report the required section 204 data submission information by the first statutory deadline for reporting on December 27, 2021 or the second statutory deadline for reporting on June 1, 2022, and that instead submits the section 204 data for the 2020 and 2021 reference years by December 27, 2022. Required section 204 data submissions include, but are not limited to:

– Certain Rx information:

– The 50 most frequently dispensed brand drugs (and total number of paid claims for each);

– The 50 most costly drugs by total annual spending (and the annual amount spent for each); and,

– The 50 drugs with the greatest increase in expenditures from the plan year preceding the plan year being reported (and for each, the change in amounts expended).

– Total spending on health care services broken down by types of costs;

– General information on the plan or coverage;

– The number of participants, beneficiaries, and enrollees;

– Each state in which the plan or coverage is offered; and,

– The average monthly premiums paid by participants, beneficiaries, and enrollees and paid by employers on behalf of participants, beneficiaries, and enrollees, as applicable.

 – Healthgram will help all clients comply with this legislation by providing access to the required Machine-Readable Files by the July 1, 2022 enforcement date via this website: mrf.healthgram.com


Annual Information Return/Reports for Form 5500 and Form 5500-SF


What it is: Titles I and IV of the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code), generally require certain employee benefit plans to file annual returns/reports concerning, among other things, the financial condition and operations of the plans. On May, 23, 2022, the Internal Revenue Service, Employee Benefits Security Administration, and Pension Benefit Guaranty Corporation published the final forms and instructions revisions for the Form 5500 Annual Return/Report of Employee Benefit Plan and Form 5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan, effective for plan years beginning on or after January 1, 2022.

Status: The final forms and instructions revisions are effective for plan years beginning on or after January 1, 2022.

What you need to know:

– The changes in the forms and instructions primarily implement annual reporting changes for defined benefit plans included in the proposal.

– A limited number of instruction changes focus on reporting for multiple-employer pension plans.

– The remaining changes are technical changes that are part of the annual rollover of the Form 5500 and Form 5500-SF forms and instructions.

– For more information, visit: https://www.federalregister.gov/documents/2022/05/23/2022-10658/annual-information-returnreports


Roe vs. Wade – Considerations for Employers and Plan Sponsors

What it is: In 1973, Roe v. Wade established the constitutional right to abortion services and struck down a state law that prohibited abortion. On May 2, 2022, the Supreme Court’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization was leaked to the public, suggesting that the Court intended to overturn Roe. On June 24, 2022 the Court did just that, voting 6-3 to overturn Roe. A copy of the Court’s opinion in Dobbs is available here.

Status: Overturning Roe makes abortion unlawful in 23 states, with several others likely to join. An interactive map showing the laws of each state on abortion is available here.

What you need to know:

– The Supreme Court reviewed a Mississippi law that bars persons from knowingly performing or inducing an abortion after 15 weeks, except in cases of a medical emergency or severe fetal abnormality.

– Now that the high court has overturned Roe vs. Wade, employers that operate self-funded health plans under ERISA might consider adding provisions for beneficiaries in states that restrict the procedure to travel to other states to get abortion services.

– ERISA doesn’t restrict abortion coverage, and the federal government (rather than the states) regulates ERISA plans.

– Employers with self-funded plans might consider changing their coverage allowances to allow for travel costs and coverage of non-network abortion providers. In cases where premiums are increased, Employers must give workers notice of benefit changes.

– Employers that do not offer self-funded plans need to be aware of changes in state abortion laws because their health plans are covered by state insurance laws rather than ERISA.

– For more information on Dobbs, visit: https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/.


Fact Sheet # 280: Mental Health Conditions and the FMLA


What it is: The Family and Medical Leave Act (FMLA) provides job-protected leave for certain specified family and medical reasons. Fact Sheet # 280 explains when eligible employees of covered employers may use FMLA leave for their own or a family member’s mental health condition.

Status: An eligible employee may take FMLA leave for their own serious health condition, or to care for a spouse, child, or parent because of a serious health condition. A serious health condition can include a mental health condition. FMLA may be unpaid or may be used at the same time as employer-provided paid leave. For more information about the FMLA generally, see Fact Sheet #28.

What you need to know:

– FMLA requires employers with fifty (50) or more employees to:

– Provide 12 work weeks of FMLA leave each year;

– continue an employee’s group health benefits under the same conditions as if the employee had not taken leave; and,

– restore the employee to the same or virtually identical position at the end of the leave period.

– FMLA may be unpaid or may be used at the same time as employer-provided paid leave.

– Mental and physical health conditions are considered serious health conditions under the FMLA if they require:

1) inpatient care, or,

2) continuing treatment by a health care provider.

– An employer may require an employee to submit a certification from a health care provider to support the employee’s need for FMLA leave. The information provided on the certification must be sufficient to support the need for leave, but a diagnosis is not required. (See Fact Sheet #28G for more information).

For more information, view Fact Sheet # 280 at: https://www.dol.gov/sites/dolgov/files/WHD/fact-sheets/whdfs28O.pdf or the FAQs at: https://www.dol.gov/agencies/whd/fmla/mental-health.