What I Know on October 28, 2020

Jennifer Spiegel Berman, JD, MBA – CEO of MZQ Consulting

It is my honor to be writing this inaugural post of the newly revamped NAHU blog: Compliance Now!  The blog’s mission is to provide our members with the compliance information they need to know, when they need to know it.

To that end, I’m acutely aware that this post will be released less than a week before Election Day 2020.  This begs the question: What CAN we know at a moment like this?  We know that fear and uncertainty reign—both relative to the coronavirus pandemic that will define our times and the impact that the election results will have on both our daily lives and our industry’s future.  What then can I share with my NAHU community?  What do we all need to know now?

It strikes me that the most valuable answer to that question is to share what we do, in fact, know (or at least have a reasoned and robust basis to believe) about what comes next.  So, without further ado, and in no particular order, here goes:

  • We’ll be hearing much more about surprise billing.  Formerly known as “balance billing,” surprise billing is on both parties’ agendas.  In fact, if asked in December 2019, I would have bet money that 2020 would have been the year we saw federal legislation on the topic.   I also have strong recollections of the same being discussed at CapCon 2020.  Global chaos clearly intervened, but it only delayed action on this issue—it didn’t derail it.

What then you may ask me will surprise billing legislation look like?  In theory, such rules will limit patient-level financial exposure in scenarios when they visit out-of-network providers.  There is clear bipartisan support for this idea, but as always, details matter, and the details here remain far from settled.  What does “effective access” to a network look like?  How are “appropriate prices” set? What about plan designs like reference-based pricing that aren’t based on a network?  I know these are all questions we will be discussing more in the weeks and months to come.  As for the answers—well, unfortunately, I shattered by crystal ball last March in a fit of rage and malcontent—so, your guess is as good as mine.

  • All eyes will be on the Supreme Court next summer.  So much attention has been paid to the Supreme Court in recent weeks that it’s easy to forget that the Court generally makes the news each year in late June.   This is when, as each term ends, the Court issues its decisions on many of the most important issues of our time. 

While Court watchers are focused on the oral arguments taking place on November 10, it’s not until next June when we will almost certainly get a decision from the Court in the case of California v. Texas.  This challenge to the constitutionality of the ACA’s individual mandate, and, more significantly, whether the rest of the ACA can survive if/when the individual mandate falls.  More on what I THINK could happen is available here

As shocking as this may sound, to me, California v. Texas is not the most interesting health benefits case before the Supreme Court this term.  I’m actually much more focused on Rutledge v. Pharmaceutical Care Management Association.  A quick Google search will reveal that the case is about whether the state of Arkansas can regulate pharmacy benefits managers.  Okay, you are thinking—Jen, that’s kind of interesting, but why on earth is it more interesting than the ACA’s future? 

The answer is two-fold: (1) I think reports of the ACA’s forthcoming demise at the hands of the Court are overblown, and (2)to me, Rutledge is about much more than PBM regulation; it is also about the future of the ERISA preemption doctrine.  There is a very real possibility that the Rutledge ruling could change much of what we know to be true about the rules governing self-funded plans.

  • Change will be incremental.  Barring an alien space invasion (which I honestly can’t rule out at this point), on January 20, 2021, either Donald Trump or Joe Biden will be inaugurated President of the United States for a 4-year term.  As powerful as the American presidency is, our presidents can’t accomplish all of their policy goals on their own. 

Readers may recall President Trump’s first executive order, issued on his Inauguration Day, declaring “it is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act.”  It goes on to direct the executive branch to use all its powers to (1) waive, defer, grant exemptions from, and delay fiscal burdens related to the act, (2) provide greater flexibility to the States, and (3) encourage the development of a free and open market in interstate commerce for health insurance.

Almost four years later, incremental changes have been made, but the ACA remains largely intact.  Why?  Short answer:  John McCain.  Longer answer:  the limitations of the American presidency do not vest legislative authority in our executive leadership.  Said differently, presidents can’t act unilaterally.  Our checks and balances system is designed to limit each branch of the federal government’s authority.  We could argue the efficacy of this system—both if it’s the right way to run a nation and if it even works—but that’s not the point I’m seeking to make.  My point is, very little happens very quickly in Washington, DC.

  • Compliance burdens won’t go away.  Plan documents will need to be updated for benefit changes.  Applicable large employers will need to complete their ACA reporting.  Form 5500s will need to be filed.  Annual notices and disclosures will need to be distributed. Etcetera, etcetera, etcetera…

I’m sorry.  I really am.  I know it’s not easy. 

I’m also proud to count myself among a legion of NAHU members that have substantial expertise in these areas.  First among them are the members of the Compliance Corner committee and Legislative Council.  You’ll be surprised by just how willing your colleagues are to help.  So, when in doubt—phone a friend!

So, if you just finished reading these excellent points on things that I “know,” you’ve probably noticed a theme.  Even on these points, there is as much or more uncertainty as there is certainty.  As disconcerting as that is, it’s also a bit exciting to me (GEEK ALERT—I know).  It’s more than just my passion for interpreting law at play—it’s also the opportunity in the air.  It is both easy and natural to fear change.  But, that’s where we, as an industry, have the chance to truly shine.  

As brokers and advisors our job is to help our clients traverse the choppy waters of a changing world.  As long as there is change, we can’t become obsolete.[1]  Instead, we are all likely to be busier than usual.  We’ll have a lot to learn and a lot to share.  Rules and strategies will shift.  And as they do, this blog, and our association as a whole, will be here every step of the way, helping to make sure that you know what you need to know when you need to know it.  

DO YOU HAVE SOMETHING TO SHARE?  A key goal for Compliance Now is to highlight the many brilliant voices in our organization.  Do you have something to share with our membership?  A unique take on a compliance issue?  A blistering (but well thought out and cordial) critique of my opinions?  I KNOW many of you don’t share my perspective, and I look forward to a lively and respectful exchange of ideas.  So, we’d LOVE to feature YOU on Compliance Now!  Please fill out the form in the “Contact Us” section of our blog, or send inquiries and/or submissions to compliancenow@nahu.org

[1] If you are now rolling your eyes and thinking—Jen, you are not acknowledging what might happen if the Democrats pass single-payer—you are right.  I’m not.  At least not today.  There are lots of good reasons that I don’t believe this is going to happen.  I promise to share them in a future post.  Key among them is that we, the NAHU community, true experts in this space, will fight this with effective advocacy and truth.  Am I being Pollyannaish?  Maybe.  But, if you’ll indulge me, I promise to be first in line to the fight.

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