April 2022 Employee Benefits Compliance Alert
Release Date: April 5, 2022
1. 2022 Telehealth Services and Health Savings Accounts: Continued but Temporary Relief Now Available
Recent legislation (The 2022 Consolidated Appropriations Act) signed into law by President Biden allows high-deductible health plans (HDHP) to offer first-dollar coverage for telehealth and other remote services without making health plan participants ineligible for health savings account (“HSA”) contributions. However, the relief starts on April 1, 2022 and runs only through the end of 2022. If an employer sponsors a calendar year HDHP with an HSA this would trigger a need to amend the plan terms to allow for the telehealth services relief.
There may be the need to coordinate closely with non calendar year plans already taking advantage, under the 2020 CARES Act, to provide first dollar coverage for telehealth for plan years beginning before January 1, 2022. For example, a HDHP with an October 1, 2021 plan year start would be able to offer first dollar coverage of telehealth through September 30, 2022, under the CARES Act. This recent telehealth services relief would only allow a plan to extend the coverage from October 1, 2022 through December 31, 2022.
Next Steps: If an employer wishes to pursue telehealth relief for those with a HDHP and HSA, speak to your Fred C. Church account manager and HSA vendor.
2. FMLA: Department of Labor Issues Employer Guidance/Examples on What Type of Employer Behavior Can Rise to Unlawful Retaliation
Employers subject to the FMLA must always be mindful on how they treat employees lawfully exercising their rights under the FMLA both when they are out on leave and when they return form leave. Retaliation is, in essence a form of employer conduct that penalizes the employee for using FMLA. In recent weeks the DOL has issued some commons sense guidance regarding what constitutes retaliation under FMLA and the FLSA as well.
A copy of the DOL guidance can be found here: https://www.dol.gov/sites/dolgov/files/WHD/fab/fab-2022-2.pdf
3. Wellness: Yale University Settlement of Wellness Litigation. Message to Employers… Be Careful of Imposing Financial Penalties on Employees
It was recently announced that Yale University settled a class action Wellness lawsuit by the payment of $ 1.29 million to impacted Yale employees and by modifying its wellness program. The Yale wellness program was aggressive: it required certain n employees to submit to extensive medical testing, such as mammograms, colonoscopies and screenings for diabetes, with the university’s wellness vendors gaining access to the results. Yale employees who chose to keep their health information private or abstain from such tests were automatically charged $25 per week, which adds up to $1,300 a year. AARP played a role in litigating the case on behalf of the Yale employees. The plaintiff employees alleged that the weekly $25 charge under the wellness program was involuntary and coercive under the Americans With Disabilities Act and its required disclosure violated the Genetic Information Nondiscrimination Act (GINA). The settlement allows Yale to continue to offer a wellness program but it cannot charge non participants opt-out fees for four years. Yale will also change its practices regarding the transfer of health data in connection with the wellness program. Finally, Yale will pay $1.29 million, to be distributed among employees who were covered by wellness program and to cover plaintiffs’ attorneys’ fees and costs.
4. Advance Notice: 2023 Maximum Out-of-Pocket Limits Announced
Even though we have just started 2022, the Department of Health and Human Services (HHS) recently announced the proposed 2023 Benefit Parameters, outlining the maximum out-of-pocket (OOP) limits applicable to non-grandfathered plans for plan years beginning in 2023. Each year, these OOP maximums are adjusted for inflation. Affordable Care Act (ACA) non-grandfathered health plans are required to comply with an overall annual limit on out-of-pocket expenses for essential health benefits. The current limits applicable to 2022 plan years are $8,700 for self-only coverage and $17,400 for family coverage. The 2023 limits will be raised to $9,100 for self-only coverage and $18,200 for family coverage, respectively.
Here’s a summary of the amounts for traditional plans for the 2022/2023 plan years versus HDHP/HSA plans for reference:
Finally, employee plan sponsors are still waiting for the DOL and the Biden Administration to issue new wellness regulations to replace those that were withdrawn at the close of the Trump administration as a consequence of a different AARP Wellness program lawsuit.
More Information: AARP Announcement Regarding the Settlement: https://www.aarp.org/politics-society/advocacy/info-2022/foundation-yale-lawsuit-settlement.html
Note: This alert constitutes compliance advice from the Fred C. Church Agency as your employee benefits broker and does not establish an attorney-client relationship with the recipient, who is free to consult with legal or tax counsel of their own choosing.