The Washington Report
If you elect to comment or engage with our content via third-party social media websites, you authorize Aon to have access to certain social media profile information. Please click here to learn more about information that may be collected when using these tools on Aon.com
December 7, 2022
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.
Legislative
Senate Approves Respect for Marriage Act; Moves to House for Consideration
On November 29, 2022, the Senate approved with a 61–36 vote the Respect for Marriage Act (H.R. 8404). The bill would provide statutory authority for same-sex and interracial marriages. Specifically, it would repeal and replace provisions that define, for purposes of federal law, marriage as between a man and a woman and spouse as a person of the opposite sex with provisions that recognize any marriage that is valid under state law. (The Supreme Court held that the current provisions were unconstitutional in United States v. Windsor in 2013.)
The bill would also repeal and replace provisions that do not require states to recognize same-sex marriages from other states with provisions that prohibit the denial of full faith and credit or any right or claim relating to out-of-state marriages on the basis of sex, race, ethnicity, or national origin. (The Supreme Court held that state laws barring same-sex marriages were unconstitutional in Obergefell v. Hodges in 2015; the Court held that state laws barring interracial marriages were unconstitutional in Loving v. Virginia in 1967.) The bill would also allow the Department of Justice to bring a civil action and establish a private right of action for violations. The legislation moves to the House for consideration, where it is expected to pass. The White House has indicated its support of the bill in a Statement of Administration Policy. Please refer to the bill text for specific provisions.
The full text of H.R. 8404 is available here.
The White House Statement of Administration Policy is available here.
Health
HHS Releases FAQS About Consolidated Appropriations Act Implementation; GFEs for Uninsured or Self-Pay Individuals
On December 2, 2022, the Department of Health and Human Services (HHS) released Frequently Asked Questions (FAQs) About Consolidated Appropriations Act, 2021 Implementation: Good Faith Estimates (GFEs) for Uninsured (Or Self-Pay) Individuals, Part 3. The guidance is in regards to the implementation of Section 112 of Title I (the No Surprises Act) of Division BB of the Consolidated Appropriations Act, 2021, and implementing regulations published in the Federal Register on October 7, 2021, as part of interim final rules with comment period, titled Requirements Related to Surprise Billing; Part II. The FAQs were prepared by HHS to address the provision of GFEs for uninsured (or self-pay) individuals, as described in Public Health Service Act Section 2799B-6 and implementing regulations at 45 CFR149.610. The latest guidance addresses the following question:
Q1: Will the Centers for Medicare & Medicaid Services (CMS) enforce the requirement that GFEs for uninsured (or self-pay) individuals include cost estimates from co-providers and co-facilities beginning on January 1, 2023?
Please refer to the FAQs document for specific details.
The HHS FAQs About Consolidated Appropriations Act, 2021 Implementation: Good Faith Estimates (GFEs) for Uninsured (Or Self-Pay) Individuals, Part 3, is available here.
Additional FAQs related to GFEs for uninsured (or self-pay) individuals are available here.
HHS Releases Bulletin on Requirements Under HIPAA for Online Tracking Technologies
On December 1, 2022, HHS’s Office for Civil Rights issued a Bulletin to highlight the obligations of HIPAA on covered entities and business associates (regulated entities) under the HIPAA Privacy, Security, and Breach Notification Rules (HIPAA Rules) when using online tracking technologies. “These online tracking technologies, like Google Analytics or Meta Pixel, collect and analyze information about how internet users are interacting with a regulated entity’s website or mobile application. Some regulated entities regularly share electronic protected health information (ePHI) with online tracking technology vendors and some may be doing so in a manner that violates the HIPAA Rules. The HIPAA Rules apply when the information that regulated entities collect through tracking technologies or disclose to tracking technology vendors includes ePHI. Regulated entities are not permitted to use tracking technologies in a manner that would result in impermissible disclosures of ePHI to tracking technology vendors or any other violations of the HIPAA Rules.”
The Bulletin addresses potential impermissible disclosures of ePHI by HIPAA regulated entities to online technology tracking vendors. The Bulletin explains what tracking technologies are, how they are used, and what steps regulated entities must take to protect ePHI when using tracking technologies to comply with the HIPAA Rules. Specifically, the Bulletin provides insight and examples of:
- Tracking on webpages;
- Tracking within mobile apps; and
- HIPAA compliance obligations for regulated entities when using tracking technologies.
The news release is available here.
The Bulletin is available here.
CMS Seeks Public Comments on EHB Under ACA
On December 1, 2022, CMS published a Request for information (RFI) seeking public comment on issues related to the Essential Health Benefits (EHB) under the Affordable Care Act (ACA). CMS issued the RFI to gather input on a variety of topics related to the coverage of benefits in health plans subject to the EHB requirements of the ACA. These topics include: the description of the EHB, the scope of benefits covered in typical employer plans, the review of EHB, coverage of prescription drugs, and substitution of EHB. Comments must be received by January 31, 2023.
The RFI is available here.
HHS Releases Proposed Rule on Confidentiality of SUD Patient Records; Implements CARES Act Provisions
On November 28, 2022, HHS, through the Office for Civil Rights and the Substance Abuse and Mental Health Services Administration, announced proposed changes to the Confidentiality of Substance Use Disorder (SUD) Patient Records under 42 CFR Part 2 (Part 2), which protects patient privacy and records concerning treatment related to substance use challenges from unauthorized disclosures. The proposed rule increases coordination among providers in treatment for substance use challenges and increases protections for patients concerning records disclosure to avoid discrimination in treatment. Specifically, the proposed rule would implement provisions of Section 3221 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) that, among other things, require HHS to bring Part 2 into greater alignment with certain aspects of the HIPAA Privacy, Breach Notification, and Enforcement Rules.
Comments on the proposed rule are due by January 31, 2023.
The news release is available here.
A Fact Sheet is available here.
The proposed rule is available here.
Retirement
DOL Releases Final Rule on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights
On November 22, 2022, the Department of Labor (DOL) announced a final rule that allows plan fiduciaries to consider collateral factors, including climate change and other environmental, social, and governance (ESG) factors, when they select among competing retirement investments. The final rules make clear that fiduciaries can choose a given investment based on “collateral benefits” (other than expected investment returns) when the two choices are equivalent from a risk–return perspective. The final investment duties rule further notes, however, that a fiduciary may not accept expected reduced returns or greater risks to secure such collateral benefits. The amendments clarify the application of ERISA’s fiduciary duties of prudence and loyalty to selecting investments and investment courses of action, including selecting qualified default investment alternatives, exercising shareholder rights, such as proxy voting, and the use of written proxy voting policies and guidelines. The amendments reverse and modify certain amendments to the Investment Duties regulation adopted in 2020.
The final rule becomes effective on January 30, 2023, although two rules relating to the assessment of proxy voting advisory firm policies and pooled fund manager proxy voting requirements will not become effective until December 1, 2023.
The news release is available here.
The Fact Sheet is available here.
The final rule is available here.
Executive Order 14030 is available here.
DOL Seeks Public Comments on Proposed Improvement to Voluntary Fiduciary Correction Program for Employers
On November 18, 2022, the DOL announced that its Employee Benefits Security Administration (EBSA) is proposing updates to its Voluntary Fiduciary Correction Program. This Program, which originated in 2002, allows plan officials to avoid potential civil enforcement actions and civil penalties under ERISA by voluntarily correcting the breach in accordance with EBSA guidelines and also filing a written application with the EBSA to obtain its approval. The proposed changes will do the following:
- Clarify some existing transactions that are eligible for correction under the program.
- Expand the scope of other transactions currently eligible for correction and simplify administrative or procedural requirements under the program.
- Permit self-correction of certain failures to deposit participant contributions and loan repayments to a pension plan trust on a timely basis.
- Amend the associated prohibited transaction class exemption, known as PTE 2002-51.
Most significant among the proposed changes is the addition of the self-correction component. Under the proposal, late deposits that do not exceed a certain amount may be corrected promptly through self-correction and electronic notification of EBSA.
The news release is available here.
The proposed program amendments, with request for comment by January 20, 2023, are available here.