We Are All Horrible Listeners and Getting Much Worse

From ResourcefulManager.com

Year-End Legislation and Regulatory Guidance Impacting Your Health and Welfare Plans

Click here or on the image for a well-done five page summary of year-end legislation and regulation impacting your health plans.

 

CMS Tightens Qualifying Events for Obamacare - But Effort Woefully Inadequate

These were not the most abused qualifying events. The elimination of these six, mostly obscure, special enrollment rationales will make little to no difference. 

From the New York Times on January 19th:

The Obama administration, responding to complaints from insurance companies, announced several steps on Tuesday that will make it harder for consumers to obtain health insurance after the annual open enrollment period.

Insurers say many consumers have belatedly signed up for coverage under the Affordable Care Act when they become sick and need care. Those latecomers drive up costs for people who sign up during the regular open enrollment period, insurers say. Open enrollment ends this year on Jan. 31.

The administration, which had created more than 30 “special enrollment” periods, sent emails to millions of Americans last year urging them to see if they might be eligible to sign up after the annual open enrollment deadline. But, insurers and state officials said, the federal government did little to verify whether late arrivals were eligible. ...

Mr. Counihan said the administration would eliminate six of the special enrollment periods, including two for certain lawfully present noncitizens who experienced “system errors” and “processing delays” when they used HealthCare.gov. ...

Federal officials said nearly 950,000 people used special enrollment periods to get coverage through HealthCare.gov from late February to the end of June 2015. In some cases, insurers said, consumers dropped coverage soon after receiving costly medical services. ...

Clare Krusing, a spokeswoman for America’s Health Insurance Plans, a trade group, welcomed the administration’s steps but said they did not go far enough. ...

Insurers had, for example, urged the administration to narrow the “exceptional circumstances” in which the federal government could grant a special enrollment period.

In a blog post on Tuesday, Mr. Counihan said, “Our program integrity team will pull samples of consumer records nationally and may request additional information from some consumers or take other steps to validate that consumers properly qualified for these special enrollment periods.” ...

Here are the eliminated QEs from the CMS blog post:

Eliminating Unnecessary Special Enrollment Periods: Last month, we announced that the Tax Season special enrollment period will no longer be offered. Today we are announcing the elimination of six other special enrollment periods that are no longer needed. Just as the Marketplace evolves, so too does consumer behavior. The rules we use to operate the Marketplace need to keep up with these changes. As such, special enrollment periods are no longer available for:

1. Consumers who enrolled with too much in advance payments of the premium tax credit because of a redundant or duplicate policy
2. Consumers who were affected by an error in the treatment of Social Security Income for tax dependents
3. Lawfully present non-citizens that were affected by a system error in determination of their advance payments of the premium tax credit
4. Lawfully present non-citizens with incomes below 100% FPL who experienced certain processing delays
5. Consumers who were eligible for or enrolled in COBRA and not sufficiently informed about their coverage options
6. Consumers who were previously enrolled in the Pre-Existing Condition Health Insurance Program

  

California Expands on PPACA's SBC Translation Requirements for Health Plans in 2016

California's SB 388 adds translation requirements to PPACA's uniform Summary of Benefits and Coverage (SBC) information. As of July 1, 2016, the Department of Managed Health Care (DMHC) and the California Department of Insurance are to make available on their internet sites written translations of the SBC templates in the required language groups and requires plan sponsors to implement them by October 1, 2016.

Existing Law 

California law requires health plans and insurers to translate vital documents into languages other than English for their non-English speaking enrollees. The languages for which written translations are required are based on the populations served. Documents that must be translated include: applications, consent forms and notices pertaining to the denial, reduction, modification or termination of benefits, and the right to file a complaint or appeal.  This law adds SBCs to that list.

Obamacare requires health plans and insurers to provide consumers with an SBC to help them evaluate and compare insurance options. The SBC include features of coverage such as covered benefits, cost-sharing provisions, and coverage limitations as well as a standard glossary of terms.  In practice however, many enrollees and practitioners in the field have found these SBCs to be confusing, and often inaccurate.  PPACA requires this information to be provided in a “culturally and linguistically appropriate manner.”

Federal guidance on what is culturally and linguistically appropriate is inconsistent with California’s language access rules. The federal rule requires the summary of benefits and coverage be translated when 10% of a limited-English proficient (LEP) population resides in the plan's county.

California’s Translation Requirements Go Further

California law requires vital documents to be translated whenever an (LEP) population is a certain percent of the plan’s enrollment, which holds plans directly accountable for the cultural and linguistic access of their members.

Medi-Cal, for example, defines such a threshold language as a language that has been identified as the primary language of 3,000 beneficiaries or five percent of the beneficiary population, whichever is lower, in an identified geographic area. Thirteen distinct languages qualify as threshold languages, according to a May 2014 Medi-Cal statistical brief. Those languages are:

• Spanish 
• Vietnamese
• Cantonese
• Armenian 
• Russian
• Mandarin 
• Tagalog
• Korean 
• Arabic 
• Hmong 
• Farsi 
• Cambodian, and 
• other Chinese. 

Spanish is the most frequently occurring, threshold language (34.5 percent) and was represented in the greatest number of counties (49). Los Angeles has the greatest number of threshold languages (12) of any county.

The DMHC also makes available, on its website, threshold languages by health plan. For example, Molina Health Care of California has the following threshold languages identified: English, Spanish, Vietnamese, Chinese, Russian, and Hmong.

California residents speak over 100 different languages and more than 40 percent speak a language other than English. Although federal law requires the SBC to be provided in a culturally and linguistically appropriate manner, the federal definition doesn't reach as far as California's.  In San Francisco, the federal standard for California requires translation into two languages, Spanish and Chinese.  But now under this California law there will be ten languages that meet language access thresholds in San Francisco: Spanish, Vietnamese, Chinese, Korean, Tagalog, Russian, Armenian, Khmer, Arabic and Hmong, with Spanish, Chinese, and Vietnamese being the most commonly required language for translations.

Timing

By July 1, 2016, the state will develop written translations of the template uniform SBC for all language groups identified by the State Department of Health Care Services in all plan letters as of August 27, 2014, for translation services pursuant to Section 14029.91 of the Welfare and Institutions Code.  Health plans are to adopt these translations by October 1, 2016.
 

A Few Sentences & 2 Pictures From Today's CBO Report

In 2016, the federal budget deficit will increase, in relation to the size of the economy, for the first time since 2009, according to the Congressional Budget Office’s estimates. If current laws generally remained unchanged, the deficit would grow over the next 10 years, and by 2026 it would be considerably larger than its average over the past 50 years, CBO projects. Debt held by the public would also grow significantly from its already high level.

[F]ewer people will be participating in the labor market than if the economy was operating at its potential.

Potential labor force participation is ... projected to decline as a result of underlying demographic trends and ... federal policies.

The budget deficit increases modestly through 2018 but then starts to rise more sharply, reaching $1.4 trillion in 2026.

Outlays for mandatory programs are projected to rise from their current 13.1 percent of GDP ... to 15.0 percent by the end of the 10-year projection period. That increase is mainly attributable to the aging of the population and rising health care costs per person.

So You Want to Be an Employer? Notable New California Employment Laws, 2016

Because Californians apparently weren’t restricted enough, Governor Brown signed 807 new bills into law for in 2016. I suppose I should not take too snarky a tone, this is quite a bit less than last year’s 931 new curtailments of freedom. Here are a few of the most notable ones impacting businesses and, therefore, employment in the Golden State.

1) E-Verify: to use or not to use?

E-Verify is an internet-based system signed into law in 1996 by Bill Clinton that implements the requirements of federal law by allowing any U.S. employer to electronically verify the employment eligibility of its newly hired employees. E-Verify is a voluntary program for most employers, but mandatory for some, such as employers with federal contracts or subcontracts. It works by electronically comparing the information from an employee’s Form I-9 with records available to SSA and/or DHS to verify the identity and employment eligibility of each newly hired employee. 

• At least seven states - UT, AZ, AL, MS, SC, GA & NC require employers to use E-Verify. 
• Most states require E-Verify for state agencies, public employers and/or public contracts. 
• Only IL and CA limit the use of E-Verify. 

In 2011, Gov. Brown signed AB 1236 into law prohibiting state municipalities from passing mandatory E-Verify ordinances.

And new for 2016, California has expanded the state’s definition of an “unlawful employment practice” to prohibit an employer from using the E-Verify system at a time or in a manner not specifically required by a specified federal law. The law also requires an employer that uses the E-Verify system to provide to the impacted employee any notification issued by the Social Security Administration or the United States Dept. of Homeland Security containing information specific to the employee’s E-Verify case. There is a $10,000 penalty for each employer’s violation.

2) Expansion of Labor Commissioner’s Spanking Stick

This law expands the Labor Commissioner’s authority to enforce judgments. Former law made aggrieved employees’ responsible for collecting their own judgments using the ordinary judicial enforcement mechanisms. This law authorizes the Labor Commissioner to issue a lien on an employer’s property for amounts owed to an employee, such as unpaid wages, and other compensation, penalties, and interest. 

  

The law also provides that an owner, director, officer or managing agent of the employer may be held personally liable for violations of any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission.

3) Additional Protection for the Unlawfully Present

The Unruh Civil Rights Act already ensures that "all persons within the jurisdiction of [California] are entitled to full and equal accommodation in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation." The new law extends this protected class categorization to individuals based on their immigration status, citizenship or primary language and mandates full and equal accommodations in all business establishments irrespective of legal residency.

4) Expanded Employee Time Off Required for School Functions

This school-related leave law is expanded to broaden the reasons employees may take job-protected leave from work without the fear of reprisal by mandating that workers be permitted to take time off work to: (1) find, enroll, or re-enroll children in a school or with a licensed child care provider, and (2) to address a child care provider or school emergency.

5) It’s Good to Be a Grocery Store Worker

Assembly Bill 359 protects grocery employees working in stores of at least 15,000 square feet from being fired during a 90-day transition period when the grocery store undergoes a change in ownership. In that process, the new employer must provide a written performance evaluation and consider an offer of continued employment following a satisfactory evaluation. In a display of unprecedented kindness, the state will allow employers retain the right to terminate an employee for cause at any time during and following the transition period. It is the first statewide law in the nation requiring grocery stores to retain employees after a change in ownership.

6) Professional Sport Team Cheerleaders Are Now “Employees” By Law

Syrian refugees may have thought they had it bad. But unless and until they’ve spoken California’s professional cheerleaders, I don’t think they have any idea how rough things can get.

AB 202 requires California-based minor or major league baseball, basketball, football, ice hockey, or soccer to treat cheerleaders as employees, not independent contractors, when they perform during exhibitions or games. This means that California cheerleaders are now afforded the full protection of all California employment laws, including protections against discrimination, harassment, and retaliation as well as minimum wage protection, unemployment insurance, potential medical benefits under Obamacare and workers’ compensation. Cheerleaders typically made $125 per game where they were, in essence, auditioning for acting, other dancing, or reality TV gigs while having fun at a professional sporting event. The state of California has made that arrangement illegal and greatly increased the cost of cheerleaders, casting doubt on their future in the state. 

  

Quality Guidance on When to Extend or Deny an Extension of FMLA Under the ADA

Here is some wise counsel from a session featuring FMLA Insights founder Jeff Nowak and EEOC Commissioner Chai Feldblum as reported in HR Morning by Tim Gould:

[O]nly conducting the undue hardship analysis after an employee has already exhausted his or her FMLA leave [is a mistake]. ...[B]usinesses can assess whether additional leave will present an “undue hardship” on “day one” of an employee’s FMLA leave. And to present a solid case for undue hardship, they should probably be doing just that. ...

[T]he specific factors that can help an employer deny additional leave as a reasonable accommodation ... include...:

• Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working OT who may be slower and more susceptible to error

• Lower quality and less accountability for quality

• Lost sales

• Less responsive customer service and increased customer dissatisfaction

• Deferred projects

• Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees, and

• Increased stress on overburdened co-workers. 

 

Enrollees Gaming Obamacare Drive Claim Costs Through the Roof

Enroll when you get sick and then drop coverage

The New York Times is reporting that the Obama administration has created more than 30 “special enrollment” categories allowing folks to enroll in Obamacare outside of a normal enrollment period.  That has allowed people to wait until they become ill or need medical services to sign up, driving up costs significantly.

Individuals enrolled through these special enrollment periods are utilizing up to 55 percent more services than their open enrollment counterparts.

It leaves individuals with no incentive to enroll in coverage during open enrollment as most can simply wait until they are sick or need services before enrolling and drop coverage immediately after receiving services.

And some of these special enrollment qualifiers are far less than ironclad.  Consumers may, for example, be eligible for a special enrollment period in “exceptional circumstances” and in “other situations determined appropriate” by the Centers for Medicare and Medicaid Services. The circumstances may include “a serious medical condition” or “misinformation” about a healthcare plan that interfered with normal plan enrollment.

Full story from NYT.
 

Companies Spawn to Shift Healthcare from Employer to Taxpayer

If you liked your plan, you are going to love Medicaid. 

From Kaiser Health News: 

... Employers have not historically played a significant role in helping workers enroll in Medicaid. But Gillingham’s insurance broker told him about a startup called BeneStream, which is based in New York City and facilitates enrollment in the government program. 

Company Shifts Insurance Costs To The Government 

Founded two years ago with seed money from the Ford Foundation, BeneStream now helps more than 6,500 workers at 125 companies across the country get Medicaid. CEO Benjamin Geyerhahn said moving workers from private insurance to Medicaid helps firms shift their costs to the government. 

“The savings is quite significant,” he said. “Our average is about 250 percent — so about two-and-a-half times the money you spend on us comes back to you in the form of saved premium.” ...

 

How is Obamacare Working? My Comments and Audio from Armstrong & Getty 1/7/16

I took a couple of weeks off from the daily grind of PPACA during the holidays but Joe Getty asked me to comment on an article he'd read in The Hill on ObamaCare's strengthened standing in 2016.  I sent him a fairly detailed, point by point, rebuttal. His summary of it was outstanding.

The audio is below, enjoy.

How Has the Congressional Budget Office Done in Forecasting Obamacare? Reasonably Well

Interesting little study from Commonwealth:

• CBO overestimated Obamacare enrollment by 30%; 
• It overestimated Marketplace costs by 28%; and 
• It underestimated Medicaid enrollment by 14%. 

Not too bad considering how incredibly difficult some of this can be to quantify.  

  

Between 1999 and 2015, Premiums Increased by 203%

Great graphic from JAMA and KFF:

Between 1999 and 2015, premiums increased by 203%, outpacing both inflation and workers’ earnings.