The Washington Report
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November 24, 2021
Note to Subscribers
Due to the current environment, information is changing at a rapid rate. While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change or be revised after our publication deadline.
Note to Subscribers: Holiday Publication Schedule
The Washington Report will not be published on December 1, 2021. Publication will resume on December 8, 2021. Have a safe and enjoyable Thanksgiving holiday!
Legislative
Administration Asks Sixth Circuit Appeals Court to Lift Stay on COVID-19 Vaccine-or-Test Requirement
On November 23, 2021, the Biden Administration filed a motion asking the U.S. Court of Appeals for the Sixth Circuit to immediately lift a stay on the vaccine-or-test requirement mandate issued by the Fifth Circuit Court of Appeals. The stay, originally issued November 6 by the Fifth Circuit, temporarily halts enforcement of the COVID-19 vaccine-or-test requirement (also referred to as the “emergency temporary standard” or “ETS”) for employers with 100 or more employees. The Sixth Circuit won the ETS litigation lottery on November 16 and will hear the consolidated cases challenging the mandate.
For additional information, please refer to OSHA Suspends ETS Enforcement After 5th Circuit Blocks Mandate in the Publications section of this newsletter.
House Approves $1.7T Social Spending Bill; Senate Passage Uncertain
On November 19, 2021, the House approved with a 220–213 vote H.R. 5376 (Build Back Better Act). The bill includes a number of funding mechanisms and modifies provisions relating to a broad array of areas, including health care, paid family leave, education, labor, child care, taxes, immigration, and the environment. Please refer to the bill text for specific details. The bill moves to the Senate for consideration, where changes are likely and passage is uncertain.
The full text of H.R. 5376 is available here.
Health
IRS Releases Advanced Copy of Proposed Regulations Which Provide That ‘Minimum Essential Coverage,’ as Used in Health Insurance-Related Tax Laws, Does Not Include Medicaid Coverage That Is Limited to COVID-19 Testing
On November 22, 2021, the Internal Revenue Service (IRS) released an advance copy of proposed regulations (REG-109128-21) which provide that “minimum essential coverage,” as that term is used in health insurance-related tax laws, does not include Medicaid coverage that is limited to COVID-19 testing and diagnostic services provided under the Families First Coronavirus Response Act. Additionally, the proposed regulations provide an automatic extension of time for providers of minimum essential coverage to furnish individual statements regarding such coverage, and an alternative method for furnishing individual statements when the shared responsibility payment amount is zero. The proposed regulations also provide an automatic extension of time for “applicable large employers” to furnish statements relating to health insurance that the employer offers to its full-time employees.
Please note this is an advance copy of the regulations. This document is in the process of being submitted to the Office of the Federal Register (OFR) for publication and will be pending placement on public display at the OFR and publication in the Federal Register. This version may vary slightly from the published document if minor editorial changes are made during the OFR review process. The document published in the Federal Register will be the official document.
The advance copy of the proposed regulations is available here.
HHS Announces New GAPB Advisory Committee in Response to No Surprises Act
On November 19, 2021, the Department of Health and Human Services (HHS) announced the creation of a new federal advisory committee, the Ground Ambulance and Patient Billing (GAPB) Advisory Committee. As mandated through the No Surprises Act, the GAPB Advisory Committee will “be charged with providing recommendations to the Secretaries of HHS, Labor, and Treasury on ways to protect consumers from exorbitant charges and balance billing when using ground ambulance services. The GAPB Advisory Committee’s recommendations will be issued to the Secretaries of HHS, Labor, and Treasury, in addition to various House and Senate committees.”
The news release is available here.
Additional information about the GAPB Advisory Committee is available in the Federal Register Notice, available here.
Departments Issue Interim Final Rule on Prescription Drug and Health Care Spending
On November 17, 2021, the Departments of Health and Human Services, Labor, and Treasury (the Departments), as well as the Office of Personnel Management (OPM), released an interim final rule on prescription drug and health care spending. The interim final rule is required under Section 204 of Title II (Transparency) of Division BB of the Consolidated Appropriations Act, 2021, and implements new requirements for health plans and health insurance issuers in the group and individual markets to submit to the Departments certain information about prescription drug and health care spending. The same information will be submitted by Federal Employees Health Benefits Program carriers in coordination with OPM. The Departments will issue biennial public reports on prescription drug pricing trends and the impact of prescription drug costs on premiums and out-of-pocket costs starting in 2023.
The interim final rule requires health plans and issuers to “submit key data to the Departments, which will use this information to publish and better understand prescription drug pricing trends and their impact on premiums and consumers’ out-of-pocket costs. Reporting requirements include requests for information on average monthly premiums and drug spending for enrollees versus their employers and/or health insurance issuers. Plans and issuers will also need to report total health care spending by the type of care patients receive. This includes spending on hospital care, primary care, and specialty care, as well as on prescription drugs and wellness programs.”
Plans and issuers must provide the Departments with an annual overview of their top 50 drugs across key areas of concern, including:
- The brand prescription drugs dispensed most frequently;
- The prescription drugs generating the highest total annual spending; and
- The drugs that resulted in the greatest increase in total annual spending over the previous year.
The interim final rule is effective on December 23, 2021. The regulations are generally applicable beginning December 27, 2021. However, please refer to the interim final rule regarding exceptions and specifics regarding the applicability date. Comments are due by January 24, 2022.
The news release is available here.
A Fact Sheet is available here.
The interim final rule is available here.
OSHA Responds to Recent ETS Court Litigation
On November 16, 2021, the Occupational Safety and Health Administration (OSHA) announced on its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) website its response to recent court litigation regarding the vaccine-or-test requirement for employers with 100 or more employees. OSHA states: “On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021…The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
For additional information, please refer to OSHA Suspends ETS Enforcement After 5th Circuit Blocks Mandate in the Publications section of this newsletter.
Please note that information on this topic is changing rapidly and readers should always refer to the various government agencies/resources for the latest developments.
The OSHA announcement is available here.
Retirement
PBGC Releases FY 2021 Annual Report; Finances of Multiemployer Program ‘Substantially Improved’; Single-Employer Program ‘Continues to Improve’
On November 16, 2021, the Pension Benefit Guaranty Corporation (PBGC) released its Fiscal Year (FY) 2021 Annual Report. According to the PBGC, “The Multiemployer Insurance Program’s positive net position of $481 million at the end of FY 2021 is in sharp contrast to the agency’s deep deficit of $63.7 billion at the end of FY 2020, a dramatic improvement of $64.2 billion. The agency’s Multiemployer Insurance Program — which was expected to run out of money in FY 2026 — is now likely to remain solvent for more than 30 years, due to the enactment of the American Rescue Plan Act of 2021. PBGC’s Single-Employer Program remains financially healthy with a positive net position of $30.9 billion at the end of FY 2021, compared to $15.5 billion at the end of FY 2020, an improvement of $15.4 billion.” For specific details about the Single-Employer and Multiemployer Insurance programs, please refer to the Annual Report.
The news release is available here.
The PBGC FY 2021 Annual Report is available here.
Other HR/Employment
DOL Issues Final Regulations Implementing EO 14026 — Increasing Hourly Federal Contractor Pay to $15
On November 22, 2021, the Department of Labor (DOL) finalized regulations to implement Executive Order (EO) 14026 (“Increasing the Minimum Wage for Federal Contractors”), which was signed by President Biden on April 27, 2021.
EO 14026:
- Increases the hourly minimum wage for federal contractors to $15;
- Continues to index the minimum wage to an inflation measure so that every year after 2022 it will be automatically adjusted to reflect changes in the cost of living;
- Eliminates the tipped minimum wage for federal contractors by 2024;
- Ensures a $15 minimum wage for federal contract workers with disabilities; and
- Restores minimum wage protections to outfitters and guides operating on federal lands by revoking President Trump’s Executive Order 13838 “Exemption From Executive Order 13658 for Recreational Services on Federal Lands.”
The final regulations and additional information (e.g., frequently asked questions, DOL Fact Sheets) are available here.
The White House Fact Sheet on EO 14026 is available here.
EEOC Updates COVID-19 Technical Assistance; Addresses Retaliation
On November 17, 2021, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to include additional information about employer retaliation in pandemic-related employment situations. The updates explain and clarify the rights of employees and job applicants who believe they suffered retaliation for protected activities under the Americans with Disabilities Act, Title VII of the Civil Rights Act, or other employment discrimination laws. The technical assistance also explains how these rights are balanced against employers’ needs to enforce COVID-19 health and safety protocols. The latest updates are available in “Section M. Retaliation and Interference.”
The EEOC news release is available here.
The updated EEOC COVID-19 technical assistance website is available here.
Aon Publications
OSHA Suspends ETS Enforcement After 5th Circuit Blocks Mandate
The Occupational Safety and Health Administration (OSHA) vaccination mandate for employers with 100 or more employees expanded from the workplace to the courtroom this week as employers assessed the impact of several recent developments.
The Aon bulletin, which provides a brief update, is available here.