Employer and other plan sponsors should start working now with their insurers, administrators and advisors to understand the implications of and their options for addressing the “Transitional Reinsurance Program” and other new Patient Protection & Affordable Care Act (ACA)-associated cost and plan design changes  so that they are prepared to finalize and implement their health plan design, contracts and arrangements in time to meet the accelerated deadlines for notifying participants of plan changes and otherwise implement their plan changes for the upcoming plan year.

The impending imposition of  Transitional Reinsurance Program assessments are only one of a myriad of new and pre-existing federal health plan rules and associated market changes impacting the design of employer and union-sponsored health plans.  Since ACA now also requires 60 days advance written notice of material health plan changes, .  When making these decisions, employer and other health plan sponsors and their advisors, administrators and insurers  should not only focus on the technically new mandates but also the allocation of fiduciary and other responsibilities, liabilities and other plan and services agreements terms.  Plan sponsors and their fiduciaries historically have underappreciated the significance of these allocations or presumed that their vendor contracts allocate responsibility to the service providers and vendors to match the sales pitch.  Always rarely the case, the changes in the marketplace and the law make it even more likely that sponsoring employers and their leaders of even plans that carefully reviewed and negotiated these responsibilities in their past contracts need to carefully look at these plan and contractual terms carefully.

The Transitional Reinsurance Program is one of a series of new ACA-imposed assessments that can impact the plan design and costs.    Proper understanding of these rules is critical for plan sponsors and their fiduciaries to ensure that they don’t unintentionally assume significantly greater liability for their self-insured health plans in an attempt to design around a relatively small by comparison ACA assessment.

Section 1341 of the Patient Protection & Affordable Care Act (ACA) requires the establishment of the reinsurance program to provide for stabilization of funding for exchanges.  Funding for the costs of the program is accomplished through amounts assessed upon insurers and self-insured plan third party administrators.  ACA § 1341 accomplishes this by providing for:

• The establishment for each State of a transitional reinsurance program stabilize premiums for coverage in the individual market from 2014 through 2016;
• Requiring all health insurance issuers and third party administrators on behalf of self-insured group health plans, to pay contributions to support reinsurance payments that cover high-cost individuals in non-grandfathered plans in the individual market.

Registration is now open for a series of webinars that the Department of Health & Human Services will host on “The Transitional Reinsurance Program: Contributing Entities and Counting Methods” on July 14, July 18 and July 23, 2014 from 2:00 p.m. – 3:30 p.m. EST.  The upcoming HHS webinars will cover the same information.  They will focus on reinsurance contributions including who is a contributing entity and how a contributing entity can calculate its annual enrollment count to determine reinsurance contribution amounts. The intended audience for this webinar is health insurance issuers, self-insured group health plans, third party administrators (TPAs) and administrative services-only (ASO) contractors.  To register for the HHS webinar and to obtain additional information see here.

Understanding how the Transitional Reinsurance Program assessments will be calculated is one of many critical steps in making plan design changes.  When considering whether to take advantage of options for minimizing these assessments, however, employer, union and other plan sponsors need to consider whether the liability and other consequences of meeting requirements for avoidance of the assessments is warranted by the anticipated savings.  With superficially it might seem desirable to avoid the payment of a few dollars per covered lives associated with the assessment, employers and other sponsoring organizations and the officers or other leadership employees involved in plan design or administration should critically review the effect of meeting these requirements specifically, as well as their proposed vendor contracts and associated plan documents and communications on their personal and organizations’ fiduciary and other liabilities.  To the extent that existing or expanded fiduciary liability cannot be avoided, it will be critical that the sponsor and its leadership ensure that proper steps are taken to select, credential, bond, and appoint the persons who will be or help carry out fiduciary or other plan-related responsibilities.  Additionally, most plan sponsors will want to consider exploring the availability of fiduciary liability insurance coverage to help mitigate the potential liability risks associated with plan sponsorship.

If you need assistance monitoring these and other regulatory policy, enforcement, litigation or other developments, or to review or respond to these or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Board Certified in Labor & Employment Law, Past Chair of the ABA RPTE Employee Benefit & Other Compensation Arrangements Group, Co-Chair and Past Chair of the ABA RPTE Welfare Plan Committee, Vice Chair of the ABA TIPS Employee Benefit Plans Committee, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health plan and employee benefit, insurance, financial services, employer and health industry clients about these and other matters. Ms. Stamer has extensive experience advising and assisting health care providers, health plans, their business associates and other health industry clients to establish and administer medical privacy and other compliance and risk management policies, to health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns. The author of the “Managed Care Contracting Guide” and a multitude of other highly-regarded publications on health plan and other fiduciary liability risk management, Ms. Stamer has advised plan sponsors, administrators, insurers and others about these and other health plan liabilities and their risk management throughout her more than 25 year career. You can get more information about her HIPAA and other experience here.

If you need assistance with these or other compliance concerns, wish to ask about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here.

You can review other recent publications and resources and additional information about the other experience of Ms. Stamer here. Examples of some recent publications that may be of interest include:

• HHS Claims Average $69/Month Cost for Subsidized Coverage Shows ACA Success Challenged
• HIPAA Compliance & Breach Data Shares Helpful Lessons For Health Plans, Providers and Business Associates
• Review & Update Health Plan Notices, Language & Process For New Guidance On COBRA, Other Key Health Plan Rules
• EEOC Suit Against Pipe Fitting Business Shows Disability Discrimination Risks For Employers Hiring Vets With PTSD
• PBGC Publishes Multiemployer Plans Valuation and Notice Requirements Final Rule
• Post-Windsor Same-Sex Participant Guidance May Require Mid-Year Plan Amendments
• Arkansas Judge Finds Arkansas Same-Sex Marriage Bans Unconstitutional; State Asks For Stay Pending Appeal
• Businesses Employing Children Should Review & Tighten Practices In Light of Tightened Rules & Increased Penalties
• Encrypt Mobile Devices & Clean Up Management Documentation Key HIPAA Compliance Messages In New HIPAA Settlements
• Stamer Talks About “Handling Health Plan Spouse, Dependent & Other “Family” Matters in Post-DOMA World” at SPBA 2014 Spring Meeting
• Stamer Speaks On “Action Steps When A Client Stops Funding Claims” at 2014 SPBA Spring Meeting
• IRS Gives Ex Pat Plans Limited Exemption From ACA Reporting Rule
• PBGC Proposes Rules Allowing Lifetime Benefit Rollover Option For Defined Contribution Participant Account Balances
• ONC HIPAA Security Risk Assessment Tool Intended To Help Covered Entities Assess Compliance
• List of Countries Excluded From Foreign Earned Income Exclusion Minimum Time Requirements Published
• Some Sponsors Should Act by 3/31 To Withdraw Individually-Designed Cash Balance Plan Approval Request

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. For important information about this communication click here.

©2014 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.   All rights reserved.