On January 13, 2023, the Department of Labor (DOL) published a final rule adjusting civil monetary penalties under ERISA. The annual adjustments relate to a wide range of compliance issues and are based on the percentage increase in the consumer price index for all urban consumers (CPI-U) from October of the preceding year. The DOL last adjusted certain penalties under ERISA in January of 2022.

On December 2, 2022, HHS published a request for information (RFI) soliciting public comments on various essential health benefits (EHB) issues under the ACA. This is the first time HHS has requested comments on updating the EHBs since it became effective in 2014. As health insurance needs have changed, such as the increase in the utilization of telehealth and awareness of mental health and substance use disorder services benefits in recent years, this RFI will assist the agency in gauging how current EHB requirements should be updated.

On November 21, 2022, in Collier v. Lincoln Life Assurance Company of Boston, the Ninth Circuit reversed the district court’s affirmance of an ERISA plan’s denial of LTD benefits. In the opinion, the Ninth Circuit emphasized that review of an ERISA plan administrator’s denial of benefits must be based upon the reasons reflected in the administrative record and not rationales subsequently introduced.

On December 20, 2022, the IRS issued IRS Notice 2023-04, which describes the indexing factor to calculate the qualifying payment amount (QPA) for items and services furnished in 2023 under the No Surprises Act (NSA). As a refresher, the NSA, in part, provides protections for individuals from surprise bills for certain out-of-network emergency and non-emergency services. The guidance in Notice 2023-04 is used to calculate the QPA when a health plan does not have sufficient information to calculate the QPA; it increases the median contracted rates from 2019...

On December 23, 2022, the Departments of Health and Human Services (HHS), Labor and the Treasury (collectively, the departments) published an amendment to the Calendar Year 2023 Fee Guidance for the Federal Independent Resolution Process under the No Surprises Act, which was previously published October 31, 2022. We covered this original guidance in our November 8, 2022, edition of Compliance Corner.

On December 23, 2022, the DOL, HHS and IRS (the departments) provided relief for employer plan sponsors regarding the CAA 2021 prescription drug data collection (RxDC) reporting requirements. Specifically, for the 2020 and 2021 data submissions that were due by December 27, 2022, the departments provided a submission grace period through January 31, 2023, and will not consider a plan to be out of compliance with the requirements provided that a good faith submission of 2020 and 2021 data is made on or before that date. Additionally, the departments will not take...

On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 (CAA 2023) into law. The $1.7 trillion-dollar annual federal spending bill includes several bipartisan provisions that affect group health plans and adopts important retirement plan proposals known as SECURE 2.0.

Congress recently passed the Respect for Marriage Act (RMA), which continues protections extended to same-sex and interracial marriages and repeals a provision of the Defense of Marriage Act (DOMA). DOMA contained a provision that stated that it did not require states to recognize same-sex marriage if that marriage was entered into in another state or treated as valid under other states’ laws. The RMA repeals that provision and prohibits states from denying the full faith and credit to any public act, record, or judicial proceeding of any other state pertaining to a marriage...

On November 28, 2022, the Department of Health and Human Services (HHS) released a Notice of Proposed Rulemaking for changes to the Confidentiality of Substance Use Disorder (SUD) Patient Records under 42 CFR Part 2 (referred to as “Part 2”). The proposed rules are intended to increase coordination among providers in treatment for substance use challenges and increase patient protections from unauthorized record disclosures. Note that Part 2 only applies to SUD treatment records from certain types of federally assisted programs, known as “Part 2 programs.”

On December 1, 2022, the Office for Civil Rights (OCR) at the HHS issued a bulletin to remind HIPAA covered entities and business associates (“regulated entities”) of their obligations when using online tracking technologies. The bulletin emphases that regulated entities must disclose PHI only as expressly permitted or required under the HIPAA Privacy Rule.