The Washington Report

May 8, 2024

Note to Subscribers

While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change after our publication deadline.

Health

 

DACA Recipients Eligible for ACA Coverage and Subsidies Under Final Regulation
Recipients of the Deferred Action for Childhood Arrivals (DACA) plan will be able to enroll in a qualified health plan under the Affordable Care Act (ACA) under a final regulation issued by the Centers for Medicare & Medicaid Services on May 3, 2024. The ability to enroll in an ACA plan applies to DACA recipients who meet other applicable eligibility requirements. DACA recipients may also qualify for advance payments of the premium tax credit and cost-sharing reductions. In addition, the regulation provides for coverage of DACA recipients under basic health programs, where available. The regulation is effective on November 1, 2024, and includes a special enrollment period for DACA recipients during the 60 days following the effective date.

A news release is available here.

The final regulation is available here.

A Fact Sheet is available here.

Departments, OPM Issue FAQ About Consolidated Appropriations Act, 2021 Implementation Part 67
On May 1, 2024, the Departments of Labor, Health and Human Services (HHS), and the Treasury (Departments), along with the Office of Personnel Management (OPM), issued a Frequently Asked Question (FAQ Part 67) regarding implementation of certain provisions of Title I (the No Surprises Act) of the Consolidated Appropriations Act, 2021, in light of the August 24, 2023, decision in Texas Medical Association et al. v. United States Department of Health and Human Services et al., Case No. 6:22-cv-450-JDK (E.D. Tex.) (TMA III). On October 6, 2023, the Departments and OPM issued FAQs About Consolidated Appropriations Act, 2021 Implementation Part 62 (FAQs Part 62).

In FAQs Part 62, the Departments and OPM “acknowledged the impact of the TMA III decision on qualifying payment amounts (QPAs) and the significant resources and challenges associated with recalculating QPAs. The FAQs stated that the Departments and OPM would exercise their enforcement discretion under the relevant No Surprises Act provisions for any plan or issuer, or party to a payment dispute in the federal IDR process, that uses a QPA calculated in accordance with the methodology under the July 2021 interim final rules and guidance in effect immediately before the decision in TMA III, for items and services furnished before May 1, 2024, the first day of the calendar month that is 6 months after the issuance of FAQs Part 62. Under FAQs Part 62, this exercise of enforcement discretion applies to QPAs for purposes of patient cost-sharing, providing required disclosures with an initial payment or notice of denial of payment, and providing required disclosures and submissions under the Federal IDR process. … Among other provisions, FAQs Part 62 also stated that HHS would also exercise enforcement discretion under the relevant No Surprises Act provisions for a provider, facility, or provider of air ambulance services that bills, or holds liable, a participant, beneficiary, or enrollee for a cost-sharing amount based on a QPA calculated using the aforementioned method.” The latest FAQ Part 67 asks:

Q: “Will the enforcement relief regarding the use of QPAs announced by the Departments and OPM in FAQs Part 62 be extended?”
A: “Yes. Since the issuance of FAQs Part 62, the Departments and OPM have received feedback that, despite taking reasonable steps to come into compliance, plans and issuers need additional time to complete the significant efforts associated with recalculating QPAs in a manner consistent with the statutes and regulations that remain in effect after the TMA III vacatur, as several of the changes to the QPA calculation methodology necessitate a manual process to locate data. Therefore, the Departments and OPM consider it appropriate to extend the enforcement relief provided in FAQs Part 62.”

The FAQ Part 67 is available here.

HHS Releases Final Rule on Nondiscrimination on the Basis of Disability in Programs or Activities
On May 1, 2024, HHS released a final rule that prohibits discrimination on the basis of disability. The rule (Discrimination on the Basis of Disability in Health and Human Service Programs or Activities), advances equity and increases protections for people with disabilities under Section 504 of the Rehabilitation Act. HHS has updated the regulations in several areas. The final rule addresses:

• Medical treatment;
• Value assessment methods;
• Child welfare programs and activities;
• Web and mobile accessibility;
• Accessible medical equipment; and
• Integration.

Additionally, the final rule updates existing requirements to make them consistent with the Americans with Disabilities Act. The final rule becomes effective on July 8, 2024.

The news release is available here.

The final rule is available here.

A Fact Sheet is available here.

Other HR/Employment

 

WHD Publishes FAB on AI and Automated Systems in the Workplace
On April 29, 2024, the Department of Labor’s Wage and Hour Division (WHD) published Field Assistance Bulletin (FAB) No. 2024-1, Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act (FLSA) and Other Federal Labor Standards, which provides guidance regarding the application of the FLSA and other federal labor standards as the use of artificial intelligence (AI) and other automated technologies increase in the workplace. “AI is sometimes used by employers to track work hours and performance, and even process medical leave requests, among other functions. The federal labor laws WHD enforces are flexible enough to cover these changing workplace practices, and protections apply regardless of technological innovation. In all cases, employers must ensure the responsible use of AI to maintain compliance with federal labor laws.”

The FAB No. 2024-1 is available here.

Aon Publications

 

Departments Finalize New Notice Requirement for Employer Fixed Indemnity Coverage, but Defer Other Proposed Changes for Now
The Departments of Labor, Health and Human Services, and Treasury (the Departments) issued final regulations on notice requirements for employers offering hospital indemnity, specified disease, and other fixed indemnity coverage to be treated as an “excepted benefit.” But the Departments declined to finalize the bulk of the 2023 proposed regulations on fixed indemnity excepted benefits coverage in the group market. The Departments left open the possibility of addressing additional requirements for these group policies in future regulations or guidance.

This Aon bulletin:

• Discusses the new notice requirement for fixed indemnity excepted benefits coverage in the group market, which applies to employers offering this coverage;
• Addresses the Departments’ decision not to finalize proposed rules related to the definition of hospital indemnity or fixed indemnity insurance coverage as an excepted benefit; and
• Notes that the Departments will continue to study the issue of hospital indemnity and fixed indemnity coverage, including current employer practices related to this coverage, and may propose regulations regarding these policies in the future.

Employers offering these fixed indemnity policies should review the new notice requirement and monitor the status of any new regulations the Departments may propose for these policies in the group market.

The Aon bulletin is available here.