The Self-Insurer, June 2022 by The Self-Insurer Magazine

JUNE 2022

A S I P C P U B L I C AT I O N

A Level-Headed Approach Level funding catches fire as bridge from fully insured plans to more adventurous self-insurance

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TABLE OF CONTENTS

JUNE 2022 VOL 164

W W W. S I P C O N L I N E . N E T

FEATURES 4

A LEVEL-HEADED APPROACH LEVEL FUNDING CATCHES FIRE AS BRIDGE FROM FULLY INSURED PLANS TO MORE ADVENTUROUS SELF-INSURANCE

By Bruce Shutan

FEDERAL APPEALS CASE COULD CHANGE THE LANDSCAPE OF INSURANCE REGULATION

By Karrie Hyatt

ARTICLES 21

HIPAA SURROGACY EXPENSES THE AFFORDABLE CARE ACT (ACA), THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA) AND OTHER FEDERAL HEALTH BENEFIT MANDATES

SIIA ENDEAVORS: SELF-INSURANCE INDUSTRY ISSUES AND PERSPECTIVES

NEWS FROM SIIA MEMBERS

NO SURPRISES ACT: OPEN NEGOTIATION STRATEGIES & COMPROMISES NOW THAT THE NO SURPRISES ACT (NSA) HAS TAKEN EFFECT, BOTH PAYORS AND PROVIDERS ARE WORKING TIRELESSLY TO UNDERSTAND THE NEW PATIENT PROTECTION REGULATORY FRAMEWORK

The Self-Insurer (ISSN 10913815) is published monthly by Self-Insurers’ Publishing Corp. (SIPC). Postmaster: Send address changes to The Self-Insurer Editorial and Advertising Office, P.O. Box 1237, Simpsonville, SC 29681,(888) 394-5688 PUBLISHING DIRECTOR Erica Massey, SENIOR EDITOR Gretchen Grote, CONTRIBUTING EDITOR Mike Ferguson, DIRECTOR OF ADVERTISING Shane Byars, EDITORIAL ADVISORS Bruce Shutan and Karrie Hyatt, 2022 Self-Insurers’ Publishing Corp. Officers James A. Kinder, CEO/Chairman, Erica M. Massey, President, Lynne Bolduc, Esq. Secretary

JUNE 2022

E AT FFE ATU URREE

A Level-Headed Approach Level funding catches fire as bridge from fully insured plans to more adventurous self-insurance

Written By Bruce Shutan

ften described as self-insurance with training wheels, levelfunded programs that enable smaller employers to reap the same benefits of greater cost control as their larger counterparts are clearly on the rise. Kaiser Family Foundation research shows that the arrangements soared to 42% last year for covered employees in companies with between 3 to 199 lives from just 13% in 2020 and 7% in 2019. Industry observers say the number reflects growing dissatisfaction with the fully insured market from businesses that are nervous about the risk-taking associated with selfinsurance and seeking more affordable stop-loss coverage.

THE SELF-INSURER

A Level-Headed Approach

“Level funding certainly gets you on the self-funded track, but it gives you a lot of protection as if you were fully-insured,” says Tom Sass, vice president of business development at Gravie. Although the level-funding concept has been around for quite some time, he notes that the small group market really began embracing it over the past five years. What’s intriguing about the recent spike in level funding is that Sass notes the percentage of employees covered by self-funded plans dropped slightly to 64% from 67%. Tom Sass

Between the importance of cost predictability and risk aversion, level funding represents a bridge from fully-insured to self-insured health plans, explains Jon Harts, EVP of business development at Ringmaster Technologies, Inc. To help ease this transition, Ringmaster helps expedite reimbursements for levelfunded and traditional self-funded programs by removing the cycle time between when a claim hits and that stop-loss carrier has enough information to reimburse the policy. While fully-insured monthly premiums are fixed and predictable, the sponsors of those plans don’t really know what they’re paying for because there isn’t transparency in the data, Harts points out. Level funding is an appealing alternative, he says, in that they can maintain fixed and predictable costs while also benefiting from the different mechanisms that self-insurance offers, lower admin fees and a reduced monthly liability.

For smaller fully insured employers that are contemplating a switch, the problem is that they don’t have enough credible data from the carrier – meaning, as Harts says, “that the reinsurer doesn’t have a way to assess the risk of the group.” But in recent years, he adds that “underwriters are starting to embrace alternate rating methods to where they can use a specific MSA, look at the average claims costs within that MSA, and use some of the standard rating mechanisms – age sex, income – to assess if it’s the right kind and would level-funded or traditional self-funded be more advantageous to a fully-insured employer.” Since passage of the Affordable Care Act, self-funded business where the maximum employer claim liability is funded each month has been coined as level-funded, explains Vicki Schmelzer, president of Strategic Underwriting Solutions, an Amwins Company. And she says “it’s being marketed as an alternate funding mechanism for employer accident and health plans and it’s usually a multi-year sale.”

Then as they become more comfortable understanding their plan’s utilization through data and have enough cash flow, Harts notes that they can move from the

“predictable monthly run rate of funding their claims to a variable rate with traditional self-funding to where they still have the assurance of stop-loss for any large claims.” Jon Harts

Vicki Schmelzer

JUNE 2022

A Level-Headed Approach BEWARE OF MISCOMMUNICATION

A key challenge with level funding is that “interpreting it as anything other than self-funding may mislead employers,” cautions John Youngs, CEO of Prodigy Health Insurance. That’s because employers fully fund to their plan maximum and may be shocked if additional funding is required while waiting for some form of policy advance reimbursement, he says. This assumes that the stop loss includes specific and aggregate advancement provisions.

broker may help their client buy down a lower annual deductible the first year to, say, $25,000 to $35,000, he explains. Then once there’s a better understanding of medical risk management, drug utilization and managing disease states, he says the deductible may rise to $50,000 or $60,000 after year two of the plan, driving down premiums and increasing margin left in the claim fund at the end of the year.

He’s also concerned about the extent to which the concept is being properly communicated. In the smaller market, for instance, some are selling it as the same a fully-insured plan except that there could be money left over at the end of the year. “I’ve heard it explained that simply by brokers, which is a terrible injustice to the product itself,” he opines, noting how those who focus on below 50 or 75 lives are accustomed to selling BUCAH policies. Left out of the conversation is the fact that the employer really is the risk taker and stop-loss is their backstop.

John Youngs

Larger groups in the 100-plus lives market may pursue the traditional self-insurance route under the guidance of an agent who’s well-versed in self-insurance and stop loss, Schmelzer notes. She says agents usually introduce clients that may be a good fit with alternate quotes to level-funded programs a few years before an actual transition. Mindful of how self-insured programs evolve, level funding is a great carrot to lure fully insured employers to self-insurance, and in the process, be schooled on the important elements of ERISA and how self-funded health plans operate, according to Youngs, who has seen these programs offered to groups between 10 and 400 lives. What typically would happen on smaller-size transition groups is that the TPA or

In some cases, the level-funded plan may require that the employer maintain a balance equivalent to the average of one or two months claim cost sit in the claim account. “This ensures the ability to fund a specific claim, should the group you have one,” Youngs says. “Otherwise, the employer waits for the specific advance or reimbursement on the specific coverage. This reserve provides the employer with a stabilization, which means they’re not having to fund unexpected amounts every month based on the volatility.” Most TPAs do a great job of helping employers manage risk below their specific deductible, he observes, while

JUNE 2022

A Level-Headed Approach the stop-loss carrier puts in place elements to help soften the financial impact for anything above that amount, and money will be advanced while claims are processed. The same thinking applies with aggregate coverage.

“We include what’s known as aggregate accommodation, which is essentially operating like a line of credit against the policy,” he explains.

they lack details on how the plan has run historically, Sass explains. But once they acquire enough data, strengthen their balance sheet and develop greater risk tolerance, then he says it may make sense to increase risk toward selffunding. THE POWER OF CASH FLOW

For example, an employer with a $500,000 attachment point and $600,000 of claims below the specific deductible would essentially be advanced $100,000 year-to-date to help cover the volatility of their over-utilization.

Financial standing will dictate the direction of these programs. Schmelzer describes the cash-flow riders that stoploss carriers offer to limit the monthly exposure during a self-funded plan year

A major selling point of level-funded plans is the cost certainty they bring month in and month out, which Sass says gets employers comfortable with shouldering the volatility to which they could be exposed. Another, of course, is the ability to share a percentage of any surplus. They also get the flexibility of plan design, reporting and everything that comes with managing their own plan.

Cash flow will help to absorb the yearround volatility of health insurance

as “one of the primary benefits and differences between traditional and levelfunded markets.”

Many smaller employers do not receive claims experience data from the carrier so

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A Level-Headed Approach claims, which employers will be liable for until they’re reimbursed from a stop-loss carrier. However, Sass has noticed a rightful concern across the industry about some employers not being able to manage a self-funded account and work within the confines of reimbursement structures on both the spec and ag year-end. Fully insured employers that decide to take the plunge can receive the same individual claim protection, irrespective of whether it’s level-funded or a tradition selfinsured contract, according to Sass. Self-funded employers still have that same fixed cost every month wherein they’re paying stop-loss premiums for ag and spec.

“So, from a fixed-cost perspective, they’re very similar in the sense of paying that stop-loss premium and administrative cost,” he adds. “Where it varies is in how you handle the variable costs, and that’s your claims… The big difference is you get much better protection around utilization and volatility on the aggregate side in that you’re writing a certain check per month.” Gravie’s level-funded book of business features a unique plan design that eliminates deductibles and copays on many services. It also was put in place to keep health plan members from deferring important treatment because of financial difficulties. Given how this plan design removes financial barriers to receiving important care, Sass says it allows small and midsize employers to offer a health benefit that will help attract and retain talent.

THE SELF-INSURER

Having been on the reinsurance intermediary side at Aon, he has seen reinsurers become anxious about backing level-funded programs unless they have an experienced team that’s familiar with underwriting these programs. “It takes a special skillset for a carrier, and you have to be committed to get into the level-funded marketplace,” Sass says, “because it prices a bit different than pure self-funding.” CONCERN ABOUT UNDISCLOSED FUNDS Youngs believes level-funded plans will continue to grow very quickly, noting that his company is expecting 20,000 employee lives in the next 24 months to be covered a new plan it has launched. “That’s a dramatic increase for us in our block of business,” he says.

A Level-Headed Approach Referencing his background in compliance and underwriting for fully insured health plans, Youngs is highly skeptical of the administrativeservices-only model and other arrangements for level funding. He has seen BUCAH carriers marking up the PPO network, case management and admin fees, as well as sharing in Rx rebates. Additionally, he continues to see TPAs and brokers receiving a share of undisclosed funds in the form of revenue sharing from vendors.

“The reason I have heartburn with all this is the client doesn’t know,” he explains. “The client is the plan sponsor, and therefore, has a fiduciary responsibility to know where the money is being spent.” An even larger concern of his is that most self-funded health plans, are paying ERISA plan expenses from the sponsoring employer’s general fund. “We don’t see them segregating the funds,” he says. “What we see in many cases, quite frankly on the self-funded health plan, is it’s all ERISA plan assets comingled in the general operating account.” At some point, he believes a continuation of these abusive practices will unleash a string of audits and penalties from insurers and regulators. Bruce Shutan is a Portland, Oregon-based freelance writer who has closely covered the employee benefits industry.for more than 30 years.

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F E AT U R E

FEDERAL APPEALS CASE COULD CHANGE THE LANDSCAPE OF INSURANCE REGULATION Written By Karrie Hyatt

W W

The IRS is challenging the Delaware Department of Insurance (DDOI) in federal court over a section of its state insurance law that protects confidential information from captives. The final decision in the case of the United States v. the Delaware Department of Insurance could have a widespread effect on insurance regulators across the country. THE IRS SUMMONS As part of it’s campaign to find tax fraud in captive insurance companies using the 831(b) tax exemption, in the early 2010s the IRS began an investigation into Artex Risk Solutions, Inc. and Tribeca Strategic Advisors, LLC, a subsidiary of Artex, for promoting abusive tax shelters. The Service issued two summons for information to the companies and when those were not complied with, the IRS took Artex to court. The summons enforcement action was successful (United States v. Artex Risk Sols.,

JUNE 2022

Federal Appeals Case Inc.) and Artex produced the documents required in 2014. Based on the information received from Artex, the IRS requested information from the Delaware Department of Insurance (DDOI) in 2017 as part of its ongoing investigation. The information requested involved 225 captive insurance companies domiciled in Delaware and managed by Artex. The IRS’s summons stated that it wanted, “all electronic mail between [DDOI] and Artex and/or Tribeca related to the captive insurance program.” In November 2017 and April 2018, the DDOI complied to the request with information that it could freely give, information that was not client specific. According to Section 6920 of Delaware’s insurance law, the commissioner cannot release an insurance company’s propriety information without consent of the company or without the written assurance that the authority requesting the information will keep the information confidential. The IRS refused to keep the information they requested confidential, and since the DDOI didn’t want to break state law by providing client-specific information, the Service referred the matter to the Department of Justice for enforcement. In June 2020, the DDOI provided documents for sixteen of their captive insurance companies after getting their approval. Later on, three additional insurance companies also consented to have their information released. That same month, the IRS sued the DDOI for not fully complying with their information summons.

“I think the [DDOI] did the right thing to follow Delaware law, but the IRS believes it can trump state law,” said Kevin M. Doherty, member with Dickinson Wright PLLC. According to Joanne Shaver, senior vice president with The Intuitive Companies and current president of the Delaware Captive Insurance Association, “The regulators at the DDOI protect the public interest and promote the solvency of insurance companies. In order to accomplish these goals, the regulators require certain confidential and proprietary information of insurers. To encourage full and complete disclosure of information in the license and application process, these confidentiality laws ensure that certain items will be held and remain confidential when in the possession of a state regulator.” “Confidentiality laws, such as Delaware’s Section 6920, are an important part of regulating the business of insurance, which is a power specifically given to states by Congress under the McCarran-Ferguson Act,” said Ryan Work, SIIA’s senior vice president of Government Relations. The IRS has been adamant about getting information from the DDOI, information that it ostensibly has already received from Artex. Looking at it from a single case perspective, Michael W. Teichman, director at Parkowski, Guerke & Swayze, P.A., said, “My assumption is that the IRS wants to make sure it has received complete

THE SELF-INSURER

responses from Artex/Tribeca, and there may be additional responsive documents that the department has that might be relevant to the IRS’s case. Until they get the document production they really will not know.” Doherty, looking at it from an industrywide perspective finds several reasons that the IRS is pursuing this information, “Number one, the IRS is trying to establish the precedent that they can obtain this type of information from the regulators whenever it chooses. Second, the IRS doesn’t necessarily trust that the information is exactly the same as what it already has. They are looking for discrepancies. Third, the IRS generally wants to discourage the formation of captives, and this level of scrutiny would stifle the willingness of many captive owners to form captives when their confidential information regarding formation and regulation (including much that is non-financial in nature and that normally would not be disclosed pursuant to tax filings) could be released to the IRS.” THE CASE AND THE DECISION The IRS’s suit against the DDOI, United States v. the Delaware Department of Insurance, was heard in the New Jersey United States District Court. The IRS relied on The Powell Standard to legitimize their summons to the DDOI. The Powell Standard is based on a 1964 case, United States v. Powell, in which the IRS believed the taxpayer to be committing fraud. The taxpayer refused the IRS summons as the Service could not show reasonable grounds or probable cause for the fraud investigation.

Federal Appeals Case

The Powell Standard has four factors that must all be met: the IRS investigation must be conducted with a legitimate purpose, the summons must be relevant to the investigation, the information requested is not already in the hands of the IRS, and proper administrative steps have been followed. The IRS contended that it met all four factors. The DDOI’s argument relied heavily on the McCarron-Ferguson Act (MFA), a federal law passed by Congress in 1944, that leaves the business of insurance regulation to each state. As all the captive insurance companies under inquiry by the IRS were licensed and regulated as insurance companies in the state, McCarron-Ferguson should supersede the IRS’s federal request for information and the DDOI must adhere to state law regarding the regulation of insurance. The DDOI also argued that the third factor in the Powell Standard was not met, as the IRS already had from Artex the requested documents.

According to Work,

“With McCarran-Ferguson, Congress did not intend for the IRS to be able to subpoena a state insurance department for confidential information pertaining to insurance entities that is collected and maintained only for the purpose of regulating the business of insurance.”

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JUNE 2022

Federal Appeals Case

The District Court’s decision was handed down in July 2021 in favor of the IRS. In the opinion of the Court, Delaware statute 6920 does not relate to the business of

According to Judge Burke’s decision, regulating insurance companies does not

insurance. The Court based its decision on a Supreme Court precedent that uses three criteria to determine if a company is participating in the “business of insurance.” The three criteria are: if risk is being transferred or spread among policyholders; if the relationship between insurer and insured is primarily about insurance; and if the business is limited to entities within the insurance industry.

constitute the “business of insurance.”

The Court found that only one of the criteria favored the DDOI position, the last one. The opinion held that

The DDOI has appealed the District Court’s decision. In March of this year, a coalition of nine state captive insurance associations, led by the Delaware Captive Insurance Association, and SIIA joined together to submit an Amicus Curiae brief on behalf of the DDOI.

“It is not about the relationship between the insurer and the insured; it is about the relationship between the insurer and its regulator, or the relationship between the regulator and other insurance regulators or investigatory agencies.” 16

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The DDOI objected to this opinion, but it was upheld in September 2021 after further review.

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Federal Appeals Case The brief delves into the District Court’s decision that the information withheld by the DDOI is the “business of insurance” and falls squarely under the MFA. According to the brief, “Because Section 6920 is aimed at receiving, maintaining, and restricting the dissemination of application and licensing information of captive insurers, it is part-and-parcel of the licensing process for Delaware captive insurers, and, accordingly, was enacted for the purpose of regulating the business of insurance. Indeed, a state’s regulation of ‘the licensing of [insurance] companies’ has long been considered to be the ‘regulation of the business of insurance.’” The appellee brief on behalf of the IRS was filed by the Department of Justice in early April. Delaware’s reply brief was filed at the end of April. The case will likely be heard this fall with a decision coming in 2023. WIDER AFFECT OF THE COURT RULING If the IRS gets its execution of summons, which means overriding Section 6920 of the Delaware insurance code, it could have far reaching affects for insurance regulation nationwide. Delaware is not alone in its confidentiality clause. According to Shaver, “Delaware’s confidentiality statute applies to all aspects of insurance regulation and to all insurance companies, not just captives. Although I am not an attorney, my understanding is a ruling in favor of the United States of America could put Delaware’s entire confidentiality statute, and those of other U.S. domiciles, at risk.” “If the court requires the State of Delaware to turn over this type of

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information to the IRS, then it would represent a significant deterioration of the state’s right to regulate insurance as set forth in the McCarran Ferguson Act,” said Doherty. “As a separation-of-powers matter, it is not appropriate for the executive branch to override the express will of Congress regarding McCarran Ferguson. To do so properly would require a change in the law, which only Congress can initiate.” The Amicus brief emphasized the point that if the IRS is allowed this information from the DDOI without assuring confidentiality, that they would be operating outside the MFA and jeopardizing similar laws in other states. The brief maintains, “Putting Congress’ intent aside, the District Court’s decision negatively effects the insurance industry on a nationwide scale, and public policy factors weigh in favor of protecting the confidential information subject to provisions such as Section 6920. State regulators, such as the Delaware Department of Insurance, protect the public interest and promote the solvency of insurance companies. In order to accomplish these goals, state regulators require certain confidential and proprietary information of insurers.”

According to Teichman, “If the IRS prevails, it would create precedent allowing any federal agency with subpoena power to obtain records (including, for example, examination workpapers), whether pertaining to captives or traditional insurers, without regard for the confidentiality provisions in the state insurance code.”

ABOUT KARRIE HYATT Karrie Hyatt is a freelance writer who has been involved in the captive industry for more than ten years. More information about her work can be found at: www.karriehyatt.com.

“It is the hope of the captive industry, and the larger insurance industry, that the Appeals Court will overturn the District Court’s decision,” said Work. “That decision is contrary to the intent of Congress and undermines not only Delaware’s authority to regulate the business of insurance, but also insurance regulations across the country.” Doherty said,

“By focusing on Artex/Tribeca, the IRS is specifically referring to smaller captives. However, the legal standards are the same, whether it relates to an 831(b) captive or a larger one pursuant to 831(a). The precedent that this case will establish will be equally applicable to large and small captives, which makes this case very important to the captive insurance industry overall.”

JUNE 2022

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A QQ& A

ACA, HIPAA AND FEDERAL HEALTH BENEFIT MANDATES:

PRACTICAL

he Affordable Care Act (ACA), the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and other federal health benefit mandates (e.g., the Mental Health Parity Act, the Newborns and Mothers Health Protection Act, and the Women’s Health and Cancer Rights Act) dramatically impact the administration of self-insured health plans. This monthly column provides practical answers to administration questions and current guidance on ACA, HIPAA and other federal benefit mandates. Attorneys John R. Hickman, Ashley Gillihan, Carolyn Smith, Ken Johnson, Amy Heppner, and Laurie Kirkwood provide the answers in this column. Mr. Hickman is partner in charge of the Health Benefits Practice with Alston & Bird, LLP, an Atlanta, New York, Los Angeles, Charlotte, Dallas and Washington, D.C. law firm. Ashley, Carolyn, Ken, Amy, and Laurie are senior members in the Health Benefits Practice. Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice to the questioner’s situation. Any legal issues should be reviewed by your legal counsel to apply the law to the particular facts of your situation. Readers are encouraged to send questions by E-MAIL to Mr. Hickman at john.hickman@alston.com.

JUNE 2022

HIPAA SURROGACY EXPENSES MUST SURROGACY EXPENSES OF A COVERED MEMBER/DEPENDENT BE COVERED? The accelerated pace of advances in fertility treatments over recent years have provided solutions that were barely imaginable a couple generations ago. Surrogacy is a bridge from infertility to parenthood, and it has become increasingly available to individuals and couples trying to conceive. Arrangements with surrogates and intended parents have raised a number of complex issues for group health plans under a variety of state and federal laws, and direction from courts and federal agencies is limited. In this article, we sort through these issues and flag some practical considerations for plan sponsors and third-party administrators. In this article we are assuming that the surrogate is a participant/beneficiary/ member/enrollee of the applicable plan (member surrogate). Pregnancy-related expenses of a non-member surrogate are typically excluded from group health plan coverage, just as other expenses of non-member are excluded. Plans sometimes include an explicit exclusion for such benefits to avoid any confusion, rather than relying solely on a general provision that the plan does not cover benefits for non-members. Reimbursement of expenses for non-member surrogates is not excludable from gross income under current IRS guidance and a taxpayer cannot deduct the medical expenses for a surrogate who is neither the taxpayer nor a tax dependent of the taxpayer1.

As a practical matter, the pregnancy expenses of the surrogate (as opposed to fertility expenses of the intended parent(s)) often are about the same as the expenses associated with nonsurrogacy, or traditional pregnancy. The difference, particularly under various states laws, is one of parental rights. A gestational surrogacy will involve any number of combinations of gametes, which could come from one, both or neither of the intended parents. In a traditional surrogacy, the surrogate uses her own egg (although this type of surrogacy is increasingly rare and even illegal in some states). These combinations complicate the issue of pre-birth parental rights, and many states will not allow the rights of the intended parents to be finalized until after birth. The surrogate, in many cases, will be the legal parent of the child (or one of the legal parents) until releasing her right after the child’s birth. One question, then, is whether any of the federal laws that require the plan to cover the pregnancy of an enrolled person would allow a plan to distinguish between a traditional pregnancy and a surrogate pregnancy for purposes of coverage, even in states where a surrogate could decide against releasing her parental rights after birth. In reviewing the Pregnancy Discrimination Act (PDA), the Newborns’ and Mothers’ Health Protection Act (NMHPA), and some applicable provisions of the Affordable Care Act (ACA) provisions, we found no such distinctions. Pregnancy Discrimination Act (PDA). The PDA amended the Civil Rights Act of 1964 and makes it clear that discrimination “because of sex” or “on the basis of sex” as used in Title VII includes

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“because of or on the basis of pregnancy, childbirth or related medical conditions.” Under guidance issued by the Equal Employment Opportunity Commission (EEOC), in general terms, the PDA requires that (i) if an employer offers health coverage, the coverage must include coverage of pregnancy, childbirth, and related medical conditions, and (ii) the employer must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy2. This includes, for example, covering the cost of a private room for pregnancy-related conditions if a plan covers the cost of a private room for other conditions, or pre-natal and post-natal visits where a health plan covers office visits to physicians3. While the EEOC has not explicitly addressed the question of coverage of pregnancyrelated-expenses where a plan member is acting as a surrogate, the requirement to cover pregnancy is explicit and no exceptions are provided based on the type of pregnancy.

Further, the pregnancy-related expenses for a woman who is acting as a surrogate are not, in general, going to be very different from the type of expenses that may arise in other pregnancies, including pregnancies where the mother places the child for adoption after birth. As already noted, in many states, the surrogate does not release parental rights until after birth, so from the perspective of the health plan, there can be no certainty until the birth mother irrevocably releases her parental rights. Newborns’ and Mothers’ Health Protection Act (NMHPA). The NMHPA imposes

on group health plans requirements relating to the length of time a mother and newborn child must be covered for a hospital stay in connection with childbirth. Under the mandate, group health plans cannot restrict benefits for mothers and newborns for a hospital stay in connection with childbirth to less than 48 hours following a vaginal delivery or 96 hours following a delivery by cesarean section. Neither the statute nor the relevant regulations contain any exception to this requirement based on whether the pregnancy is a surrogacy. Thus, excluding coverage for pregnancy related expenses for members who are acting as surrogates would appear to be a violation of NMHPA requirements. These requirements are imposed through ERISA, the Internal Revenue Code (the “Code”), and the Public Health Service Act (PHSA)4. ACA Requirements. Certain ACA requirements may also be involved depending on the scope of any exclusion for pregnancy-related services of a

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woman acting as a surrogate. For example, non-grandfathered health plans are required to cover certain preventive care services without cost-sharing. Certain of the required preventive services relate to pregnancy. As another example, the ACA, as amended by the No Surprises Act, imposes certain coverage requirements on group health plans that cover any services in an emergency department of a hospital or emergency services in a freestanding independent emergency department.

If a member acting as a surrogate required emergency medical care covered under the No Surprises Act for treatment related to the pregnancy, there is no exception that would allow the plan to refuse to cover the expense. Cases. Even though these federal laws and regulations make no distinctions between traditional pregnancies and surrogate pregnancies, there are group health

No mention of the PDA, NMHPA, or any of the other requirements discussed above is made in the cases. Thus, this case law is not precedent with respect to the core issue as to whether it is permissible to exclude pregnancy related expenses for members. The case law, however, does provide some insight into issues that can arise from potential ambiguities in plan provisions regarding benefits for surrogates. In Moon v. Tall Tree Adm’s, LLC5, the plan contained a catch-all exclusion for all non-traditional medical services, treatments and supplies which “are not specified as covered under this Plan, including, but not limited to pregnancy charges acting as a surrogate mother.” The plaintiff argued that this exclusion should be limited to non-traditional medical expenses associated with acting as a surrogate mother and that the traditional expenses relating to the pregnancy of a surrogate mother should be covered. The court disagreed, finding that the plan language in question unambiguously excluded all medical coverage related to surrogate pregnancy. The court also found that the plaintiff’s contention that the exclusion was ambiguous was not supported by the language of the plan and required addition of language to the provision, which was not warranted.

plans that make such distinctions (or plan documents have been interpreted by the plan administrator to make such distinctions) even for member surrogates. There have been a few cases that address the issue of coverage of pregnancy expenses for members acting as surrogates. The limited cases address only whether benefits for members acting as surrogates were properly excluded based on the terms of the ERISA plan, which is a contractual issue. Each of the cases conclude that the benefits were properly excluded.

Finally, the court found that the plaintiff’s interpretation was not reasonable, and she did not raise any other interpretation that would render the provision ambiguous. As another example, the plan involved in Roibas v. EBPA, LLC6, listed “[e]xpenses for surrogacy” under a section of the plan titled “General Medical Exclusions

JUNE 2022

and Limitations”. The plaintiff argued that she was a not a surrogate, because a surrogate supplies the egg. Rather, she was a “gestational carrier” because she hosted the fertilized egg of someone else. Because she was not a “surrogate” the exclusion should not apply in her situation. The court found that the plan was ambiguous regarding the definition of “surrogate” but given the deferential standard of review for a plan administrator’s determination found that the plan’s interpretation was not unreasonable7. Potential sanctions for noncompliance. Potential sanctions and the potential responsible persons will vary based on the particular provision involved as well as the facts and circumstances: A violation of the PDA could result in a requirement that the benefit be paid, along with applicable attorney fees and consequential damages. Violations of the NMHPA are subject to the same enforcement regime as requirements under the ACA (such as preventive care requirements). The employer may be subject to an excise tax penalty under the Code of $100 per person per day for each violation.

ERISA authorizes plan participants and beneficiaries to bring suit to enforce the provisions of ERISA. Participants and beneficiaries may also bring actions for claims for benefits under the plan. The Department of Labor is authorized to bring a variety of enforcement actions as well.

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Practical considerations. A variety of practical issues may arise when the sponsor of a self-funded plan is considering excluding pregnancy-related expenses for a plan member acting as a surrogate, including the following:

•

The plan sponsor should review with their own legal counsel the relevant applicable law and potential implications, such as coordination of benefits possibilities.

•

The scope of any exclusion (e.g., coverage of mental health services that may be needed during the course of the pregnancy, emergency services, or complications that arise during the course of the pregnancy)

•

Clarity of drafting the intended scope of the exclusion.

•

Determining whether any exclusion applies--existence of a surrogate arrangement may not be evident until after the birth, and the plan would need to know what action, if any, to take at that time.

Some plan sponsors of self-funded plans have chosen to exclude from coverage pregnancy related expenses for a plan member acting as a surrogate mother.

However, there are clearly risks with such exclusions, given the lack of distinction between a surrogacy and traditional pregnancy in PDA, NMHPA, and ACA requirements.

While in most cases the consequences will fall on the plan sponsor, the TPA or ASO administrator may also be involved, for example in claims disputes. In some cases, the TPA/administrator may be a plan fiduciary based on the scope of their authority, presenting additional risks. References 1) Code § 105(b) See also Magdalin v. Comm., 105 AFTR 2d 2010-442 (1st Cir. 2009); Morrissey v. United States, 871 F.3d 1260 (11th Cir. 2017) (expenses did not affect a structure or function of the taxpayer’s body); Longino v. Comm’r, T.C. Memo 2013-80 (2013) (IVF expenses of an unrelated person (here, the taxpayer’s former fiancée) were not medical care expenses of the taxpayer where no defect prevented him from naturally conceiving children), aff'd 114 AFTR 2d 2014-6910 (11th Cir. 2014); IRS PLR 202114001 (Jan. 12, 2021). 2) EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, I.A.4(a) (last visited on April 18, 2022). See also, 29 CFR Part 1604, Appendix – Questions and Answers on the Pregnancy Discrimination Act, Q&A 23-24. 3) Id., Q&A 25 4) ERISA §711, Code §9811, PHSA §2725. 5) 814 Fed. Appx. 371 (10th Cir. 2020).

JUNE 2022

NO SURPRISES ACT: OPEN NEGOTIATION STRATEGIES & COMPROMISES Now that the No Surprises Act (NSA) has taken effect, both payors and providers are working tirelessly to understand the new patient protection regulatory framework.

Written By Scott Bennett, Esq.

T T

his important new process not only requires a unique calculation for surprise bills according to a new in-network methodology, but also encourages negotiations instead of balance billing when that rate is not accepted. The traditional appeals and balance bills on past claims have been combined into a new form for NSA claims: the Open Negotiation Notice. Not to be ignored, this form carries with it a looming threat of formal action if negotiations fail after 30 business days. A prepared Third Party Administrator (TPA) should know the events and steps involved in the Open Negotiation process, understand the factors and benchmarks available during the negotiation, and learn a few strategies that have surfaced in the early part of this year during these negotiations.

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AN OUT-OF-NETWORK EMERGENCY CLAIM WALKS INTO A TPA… When a TPA receives a medical bill that meets the criteria for a surprise billing claim, the first step is to determine the Qualifying Payment Amount (QPA) and issue payment. While many providers may accept this initial payment, which is intended to represent the median in-network rate, some providers may disagree with the amount and seek additional payment. The NSA prevents additional payment from the patient (a balance bill), and instead requires an Open Negotiation period between the payor and provider. The explanation of benefits (EOB) sent to the provider and should include the contact email for the Open Negotiation Notice (perhaps in a reason code). Including a contact email on the EOB not only provides a clear path to start the negotiation process, but that same EOB would serve as evidence if a party ignores the provided contact and sends the Open Negotiation Notice elsewhere and then attempts to leverage the failed notice later in the process. The Open Negotiations process includes the following events: the Open Negotiation Notice, review and a good faith response, and resolution or representation. Each stage is an opportunity to leverage the available rules for efficient closure of the claim. The Open Negotiation Notice most likely will arrive by email, and intake actions should include verification that the form is complete and includes all required information, and a secure request for any additional, necessary information to identify the claim (Open Negotiation Notice forms do not presently require patient or claim identifiers). Once the Open Negotiation Notice arrives and is verified as complete, a rapid review of the available benchmarks for the specific claim to validate the range for negotiation and a good faith response will keep the conversation on track.

A response might include an express intent to negotiate in good faith, a short explanation that the payment (or offer) is supported by independently reviewed benchmarks, and a clear outline of the dates and deadlines ahead.

As offers are exchanged there may be possibility for resolution, which avoids the formal process of Independent Dispute Resolution (IDR). However, if it looks like the negotiation will fail, any records of benchmarks and good faith attempts to negotiate should be documented, and the final letter prior to IDR should clearly identify the contact information (including an email address) for representation in IDR. THE QPA NO LONGER STANDS OUT IN A CROWD OF FACTORS The Interim Final Rule for the No Surprises Act (NSA) placed the QPA) at the center of any dispute. Independent Dispute Resolution Entities (IDREs) were instructed to presume the QPA as correct and place the burden on a provider to prove why additional payment was necessary. NSA negotiations (and disputes) looked like the exception rather than the norm. However, the recent opinion in Tex. Med. Ass'n v. United States Dep't of Health & Human Servs. (E.D. Tex. 2022), struck down the presumption that the QPA was correct, and guidance now pointed to a number of equal factors to be considered in a payment determination in addition to the QPA.

JUNE 2022

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While this case is being appealed, for the time being this litigation has essentially relegated the QPA to one of many starting points (and potential end points) in a surprise billing negotiation.

THE LEVEL OF TRAINING, EXPERIENCE, AND QUALITY MEASUREMENTS A provider may now argue that the quality level of their services merits a payment higher than the QPA, and a TPA would want to analyze that statement using objectively available data. Facility quality benchmarks are publicly available through the Hospital Value Based Payment System Data, which is arguably published for use in this kind of analysis. Further, the Merit Based Incentive Payment System data is also available for analysis of professional service providers. Some services (like durable medical equipment sold in emergency situations) would not rely on training or experience of the provider, which might be worth noting if those are a large portion of a surprise bill.

THE QPA This benchmark is either supplied by the network based on the median contracted rate, or derived from a database if the median contracted rate is not available. Identifying whether a QPA is from a network or derived from a database would be helpful information for an IDRE. However, the updated rules do not currentlly identify the QPA as the primary factor, and the rules expressly do not require an exploration of the exact calculation or methodology as part of a negotiation or dispute. A short and simple statement about the QPA source and calculation could avoid a situation where a QPA could be put on trial rather than the main issue: whether or not the payment is reasonable. With the QPA in the relegated position (for now) the additional factors available for negotiation (and dispute resolution) are as follows: the level of training, experience, and quality measurements; market share; patient acuity; teaching status, case mix, and scope of services; demonstration of good faith efforts; and additional related credible information.

MARKET SHARE A TPA may be able to show that an initial payment is reasonable even if there are higher contracted rates in the area because of deficiencies in a specific market. The most common available data for this factor is a provider directory, such as the Hospital General Information published by Medicare. Directories such as this would allow an analysis of the ownership percentages in the area and whether there is meaningful competition, or whether the market power in the area allows a single entity to dictate price. PATIENT ACUITY A provider may argue that the medical services are complex and additional payment is warranted because of the patient acuity. A TPA could frame this discussion around the diagnosis reported when the service was provided.

JUNE 2022

One method to identify the acuity of the patient is the score assigned to a specific diagnosis or procedure for its complexity and resource use, such as the Diagnosis Related Group Relative Weight information published by Medicare. TEACHING STATUS, CASE MIX, AND SCOPE OF SERVICES Drawing from the individual case/acuity scores in patient acuity, a case mix index of the provider’s typical or historical services would help identify whether a specific case is an outlier for the provider. If the case is not an outlier, a TPA could argue that this routine case would not demand unique payment accommodations. DEMONSTRATION OF GOOD FAITH EFFORTS The open negotiation period and related communications create an opportunity to document good faith. Also, if a party has access to past attempts to reach a network agreement, this data may be important as well. It would not be surprising if this factor tied in directly with market share to show that an entity with control over the market would not respond to any reasonable requests for compromise. ADDITIONAL RELATED CREDIBLE INFORMATION Specific cases may hinge on information that does not fit directly in the above categories. For instance, an article or interview that contradicts other pricing evidence, or an example of a medical device available online for a much lower or higher cost directly from the manufacturer could affect negotiations and dispute resolution when contract rates are in conflict.

THE SELF-INSURER

EARLY NEGOTIATION STRATEGIES AND RESPONSES While many parties are using the Open Negotiation process to efficiently resolve disputes, two suspect approaches to Open Negotiations that might threaten efficiency have surfaced in the short time since the process has been in place: Open Negotiations as pretext and Open Negotiations as discovery. OPEN NEGOTIATIONS AS PRETEXT If a party does not include all of the required information on an Open Negotiation Notice, sends only one email to a generic inbox without follow up, and then files for IDR as soon as the time has passed, this is strong evidence that the communication is a pretext to pull the other party into a dispute without a meaningful conversation.

An effective response to this strategy is to identify that the Open Negotiations Notice is incomplete, so the process has not started, and any attempt to file for IDR will be promptly disputed as untimely. Further, even if the Open Negotiation Notice is sufficient, bad faith negotiations could arguably be a viable reason to request an extension of time (available for reasons except payment) when a dispute is filed, and as credible evidence as to why the noninitiating party’s offer should be considered in a dispute. OPEN NEGOTIATIONS AS DISCOVERY When a negotiating party stalls negotiations with demands for very specific evidence about the variables, algorithms, and sources for a QPA payment, they may be trying to use the Open Negotiations process as a discovery process rather than to resolve the claim at issue in good faith. This strategy, and the laundry list of “interrogatories” included in these letters give the impression that the origins of a QPA are on trial or will be on trial. An effective response to this strategy is to provide a short statement that the QPA was “provided by the network” or “derived from a database” and, state an intent to negotiate in good faith, evidenced by responding to communications, presenting offers, and identifying a credible basis for those offers; identify that the IDR process specifically does not require the IDRE to consider the calculation of the QPA,

and the QPA is not on trial; and warn that repeated demands for extensive information that is not to be considered in IDR is evidence of bad faith and an attempt to derail any meaningful negotiations. CONCLUSION From the initial payment to a settlement or final determination, a properly executed Open Negotiation strategy will likely resolve claims much faster than in the nebulous days of balance bill defense and confusing collection tactics. The three most important strategies to adopt are: a prompt response upon receipt of an Open Negotiation Notice, evidence packed communication in negotiations, and demonstrated, documented evidence of good faith.

Scott Bennett is Vice President of Provider Relations for The Phia Group. Scott is an attorney, data analyst, software developer and a Certified Professional Coder through the American Academy of Professional Coders. Prior to joining The Phia Group, he worked at a national third party administrator as Vice President of Access Innovation. Prior to his TPA work, Scott was an Associate General Counsel, Director of Dispute Resolution, and designated company witness at a nationwide medical bill review company focused on commercial payor reimbursement and workers’ compensation fee schedules and disputes.

JUNE 2022

ENDEAVORS

SIIA

ENDEAVORS

S S

ELF-INSURANCE INDUSTRY ISSUES AND PERSPECTIVES

Real-Time Polling Results of SIIA Spring Forum Attendees Provide Industry Perspectives, Opinions and Guidance on Key Industry Issues

For the 500+ registered attendees at the Spring Forum 2022 held March 30 − April 1, the SIIA live audience polling technology provided a fast, entertaining start to the event. Using their mobile devices to anonymously respond to questions, word clouds and surveys, participants offered their perspectives and opinions on the hottest industry issues – includinga question related to national politics. The detailed polling results are provided in the following pages with some quick highlights listed below.

THE SELF-INSURER

ENDEAVORS HOW WAS YOUR COMPANY’S FINANCIAL PERFORMANCE IN 2021? More than half responded ‘very strong’ WHAT IS YOUR COMPANY’S CURRENT WORK ENVIRONMENT? 50% responded ‘hybrid’ WHAT IS YOUR GENERAL OUTLOOK FOR THE SELF-INSURANCE INDUSTRY OVER THE NEXT FIVE YEARS? 49% ‘very positive’

WHAT IS YOUR OPINION ABOUT DIRECT PROVIDER CONTRACTING? 39% indicated ‘mostly positive, but with limited marketplace opportunities’ Additional topics ranged from Stop-Loss Captive Programs and Direct Primary Care

WHAT IS THE SINGLE BIGGEST THREAT TO THE SELF-INSURANCE INDUSTRY? ‘Government Regulation’ followed by ‘Democrats’ WHAT IS THE SINGLE BIGGEST OPPORTUNITY TO THE SELF-INSURANCE INDUSTRY? ‘Transparency’ followed by ‘Cost Containment’ WHAT IS YOUR OPINION ABOUT REFERENCE BASED PRICING? 37% responded ‘provides significant value and is a long-term solution opportunity’ to Mental Health Parity Requirements, PBM Cost Containment and more.

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JUNE 2022

Question 1 Financial How Was was Your Company's Comany’s Financial 2021? Performance in 2021?

Very Strong

52% Somewhat Strong

33% Marginal

12% Poor

1% N/A - Not Sure

THE SELF-INSURER

SELF INSURANCE INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

Question 2 What is Your Company’s Current Work EnvirRnment?

All or most employees back in office full-time All or most remote Hyrbid arrangement

17%

33%

50%

Question 3 What is Your General Outlook for the Self-InsuraQce Industry Over the Next 5 Years? Very Positive 49% Mostly Positive 41% Mixed Review 5% Pessimistic 2% No Opinion 4% SELF INSURANCE INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

JUNE 2022

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Question 4 What is Your 2SLQLRQ About Reference Based Pricing?

37%

Provides significant value and is a long-term solution opportunity

31%

Mostly positive in the short run, but longer-term is questionable

22%

Mixed short-term effectiveness and uncertain about IXWXUH YLDELOLW\

Offers only limited or no value

Other/No opinion

SELF INSURANCE INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

JUNE 2022

Question 5 What is Your Opinion About Direct Provider Contracting?

38%

Provides significant value and is a long-term solution opportunity

39%

Mostly positive, but with limited marketplace opportunities

14%

Great future potential subject to effective industry education

Offers only limited or no value

Other/No opinion

THE SELF-INSURER

SELF INSURANCE INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

“You have become a key partner in our company’s attempt to fix what’s broken in our healthcare system.” - CFO, Commercial Construction Company

“Our clients have grown accustomed to Berkley’s high level of customer service.” - Broker

“The most significant advancement regarding true cost containment we’ve seen in years.” - President, Group Captive Member Company

“EmCap has allowed us to take far more control of our health insurance costs than can be done in the fully insured market.” - President, Group Captive Member Company

“With EmCap, our company has been able to control pricing volatility that we would have faced with traditional Stop Loss.” - HR Executive, Group Captive Member Company

People are talking about Medical Stop Loss Group Captive solutions from Berkley Accident and Health. Our innovative EmCap® program can help employers with self-funded employee health plans to enjoy greater transparency, control, and stability. Let’s discuss how we can help your clients reach their goals.

This example is illustrative only and not indicative of actual past or future results. Stop Loss is underwritten by Berkley Life and Health Insurance Company, a member company of W. R. Berkley Corporation and rated A+ (Superior) by A.M. Best, and involves the formation of a group captive insurance program that involves other employers and requires other legal entities. Berkley and its affiliates do not provide tax, legal, or regulatory advice concerning EmCap. You should seek appropriate tax, legal, regulatory, or other counsel regarding the EmCap program, including, but not limited to, counsel in the areas of ERISA, multiple employer welfare arrangements (MEWAs), taxation, and captives. EmCap is not available to all employers or in all states.

Stop Loss

Group Captives

Managed Care

THE SELF-INSURER

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JUNE 2022

Question 6 What is Your Opinion About Stop-Loss Captive Programs? Provide significant value and are a long-term solution opportunity 36% Mostly positive, but with limited marketplace opportunities 21% Provides value for some but mostly overrated 31% Offers onO\ limited or no value 0% Other/No Opinion 12%

Question 7 What is Your Opinion About Direct PULPDU\ Care?

THE SELF-INSURER

21%

True game-changing strategy that is a long-term solution

26%

Mostly positive, but with limited marketplace opportunities

33%

Great future potential subject to effective industry education

12%

Offers only limited or no value

Other/No opinion

SELF INSURANCE INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

Question 10 What is Your Understanding of the New Price Transparency Rules? Fully up to speed and understand everything 9% Good understanding but need more education 49% Trying to keep up but it’s challenging 37% Totally overwhelmed 5%

Question 11 How Concerned Are You About New Mental Health Parity RequirHments? Very concerned 13% Somewhat concerned 17% Not concerned 40% Don’t know about these Requirements 27% Non-Applicable/Other Responses 2%

SELF INSURANCE INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

JUNE 2022

The right solution Self-funded health plan administration The speed of change in the health care industry is expanding the definition of health care and redefining roles for traditional players. New and emerging technologies led by single point solution vendors, rising health care costs, regulation, and non-traditional market entrants have many payers and health systems evaluating their options.

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At AmeriHealth Administrators, we have a proven history of working with employer and payer clients to address their challenges and have the vision, technology, and people to meet the needs of our customers and partners. © 2021 AmeriHealth Administrators

1599500 11-21

Question 12 What is Your View of PBMs in terms of cost containment? Most or all add value Some add value Few or none add value Difficult to determine given complicated business practices

37%

30%

28%

Question 13 What term do you prefer? Self-Insured Self-Funded Don’t Care/No Opinion

26%

53%

SELF INSURANCE INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

21%

JUNE 2022

Question 14 What do you think the reults will be for the mid-term election? Republicans take control of House and Senate Republicans take the House but Dems hold the Senate Republicans take the Senate but Dems hold the House Democrats hold both the House and Senate

58%

12%

20%

10%

Question 15 How often do you use LinkedIn?

50%

Daily

30%

Weekly

Monthly

10%

Rarely

Never

46 INSURANCE THE SELF-INSURER SELF INDUSTRY ISSUES AND PERSPECTIVES | AUDIENCE LIVE POLLING RESULTS

NEWS

NEWS FROM SIIA MEMBERS SIIA DIAMOND, GOLD & SILVER MEMBER NEWS SIIA Diamond, Gold, and Silver member companies are leaders in the self-insurance/captive insurance marketplace. Provided below are news highlights from these upgraded members. News items should be submitted to membernews@siia.org. All submissions are subject to editing for brevity. Information about upgraded memberships can be accessed online at www.siia.org. If you would like to learn more about the benefits of SIIA’s premium memberships, please contact Jennifer Ivy and jivy@siia.org.

JUNE 2022

Depend on Sun Life to help you manage risk and help your members live healthier lives Behind every claim is a person facing a health challenge. By supporting members in the moments that matter, we can improve health outcomes and help employers manage costs. For nearly 40 years, self-funded employers have trusted Sun Life to quickly reimburse their stop-loss claims and be their second set of eyes, looking for savings opportunities. But we are ready to do more to help members in the moments that matter. We now offer care navigation and health advocacy services to help your employees and their families get the right care at the right time – and achieve better health outcomes. Let us support you with innovative health and risk solutions that benefit you and your medical plan members. It is time to rethink what you expect from your stop-loss partner. Ask your Sun Life Stop-Loss Specialist about what is new at Sun Life or click here to learn more! STOP-LOSS

DISABILITY

ABSENCE

DENTAL / VISION

VOLUNTARY

LIFE

The content on this page is not approved for use in New Mexico. For current financial ratings of underwriting companies by independent rating agencies, visit our corporate website at www.sunlife.com. For more information about Sun Life products, visit www.sunlife.com/us. Stop-Loss policies are underwritten by Sun Life Assurance Company of Canada (Wellesley Hills, MA) in all states except New York, under Policy Form Series 07-SL REV 7-12. In New York, Stop-Loss policies are underwritten by Sun Life and Health Insurance Company (U.S.) (Lansing, MI) under Policy Form Series 07-NYSL REV 7-12. Product offerings may not be available in all states and may vary depending on state laws and regulations. © 2022 Sun Life Assurance Company of Canada, Wellesley Hills, MA 02481. All rights reserved. Sun Life and the globe symbol are trademarks of Sun Life Assurance Company of Canada. Visit us at www.sunlife.com/us. BRAD-6503-u SLPC 29427 01/22 (exp. 01/24)

NEWS GOLD MEMBERS 6 DEGREES HEALTH WELCOMES DAWN BURNETT AS VICE

PRESIDENT OF BUSINESS DEVELOPMENT

Hillsboro, OR - 6 Degrees Health is pleased to announce that Dawn Burnett has joined the company as VP of Business Development. Dawn will draw upon 15 years of experience in insurance to deliver strategic initiatives for brokers and employers.

must bring them the tools and knowledge that empower them to confidently navigate the insurance landscape. Over the last 15 years, Dawn has worked with many Fortune 10 Insurance Companies. With this experience, she brings a depth and breadth of knowledge that will help her to execute on delivering creative/strategic initiatives for brokers and employers. You can expect 100% transparency and trust in her talents. Dawn loves being a Wife and Mom (to 4 awesome kids). In her free time, you will find her working-out in her gym, or being outdoors with the family's German Shepherd at her side. Dawn can be reached at dawn.burnett@6degreeshealth.com

“We are excited to have Dawn join our team. With her experience, knowledge, and drive, her focus at 6 Degrees Health will be working with brokers, consultants and their clients providing meaningful change for employers and their employees to reduce their healthcare spend.” -Heath Potter, Chief Growth Officer Dawn joins 6 Degrees Health as a VP of Business Development. She is passionate about controlling healthcare costs and removing barriers to affordable and accessible healthcare options. She will provide a path of solutions options through RBP, OON, and Payment Integrity that our meaningful and actionable for any employer. We

JUNE 2022

NEWS 6 DEGREES HEALTH WELCOMES JUSTIN

JOBE AS DIRECTOR OF BUSINESS

DEVELOPMENT Hillsboro, OR - 6 Degrees Health is excited to announce Justin Jobe has joined the company as a Director of Business Development. “Justin’s knowledge of health systems and his experience in the employee benefits space positions him very nicely as a resource to our broker partners. We are excited to have him focus on driving new business to provide cost saving solutions to selffunded employers across the country” Heath Potter, Chief Growth Officer

Justin brings years of experience in various health plan affiliated roles ranging from managing sales and marketing teams, vendor relation oversight, and regulatory readiness including NCAQ and URAC. Most recently Justin held the position of EVP being the subject matter expert on employee benefits and Medicare. Justin brings prior knowledge of health plan systems, hospital expenses, provider

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networks, and a network of hospital chains. Additionally, his experience with clean claim processing will bring value collaborating with Brokers and TPAs. Justin’s extensive insurance background will bring years of industry knowledge to 6 Degrees Health to understand the problems clients are facing and offer cost containment solutions. Justin is based in Texas and holds a degree from Sam Houston State University. Justin can be reached at justin.jobe@6degreeshealth.com About 6 Degrees Health 6 Degrees Health is built to bring equity and fairness back into the healthcare reimbursement equation. Industryleading MediVI technology supports our cost containment solutions with objective, transparent, and defensible data. 6 Degrees Health’s solutions include everything from provider market analyses, reasonable value claim reports, ad hoc claims negotiations, evergreening provider contracts, and referenced- based pricing. Our veteran cost containment team partners with health plans and their channel partners to deliver unparalleled cost containment results. Visit

www.6degreeshealth.com

SILVER MEMBERS

NEWS SILVER MEMBERS NOVA HEALTHCARE

ADMINISTRATORS RANKED THIRD AMONG 2022 BEST

COMPANIES TO WORK FOR IN NEW YORK

Buffalo, NY – Nova Healthcare Administrators was recently named as one of the 2022 Best Companies to Work for in New York. Recognized for the fifth year in a row, Nova ranked third out of 23 finalists in the medium size company category. This statewide survey and awards program is designed to identify and honor the best places of employment in New York, benefiting the state's

Focused on Clients.

Dedicated to Results.

economy, its workforce and businesses. The 2022 Best Companies to Work for in New York list is made up of 75 companies across small, medium and large categories. “I am elated that Nova was named to the Best Companies list for the fifth year in a row,” said Nova’s President James Walleshauser. “Engagement and culture are at the forefront of everything that Nova does. With over two years of working in a near-fullyremote environment, we have proven that our culture and core values extend beyond a physical building. We are committed to keeping our associates happy, healthy and engaged because we believe that people who love the work they do, do work that people love.” Whether meeting a client deadline or taking a breather for a biweekly mindfulness session, Nova associates work hard and have fun. A variety of associate-led groups, including a Diversity Council, Renovations wellness committee and Nova in the Neighborhood volunteer committee offer the opportunity to connect with one another, grow and make an impact on the company and community. The annual Best Companies awards program is presented by the New York State Society for Human Resource Management (NYS-SHRM), Best Companies Group and BridgeTower Media/ Rochester Business Journal. Companies from across the state entered the two-part survey process to determine the Best Companies to Work for in New York.

Our Complex Claim Consulting Practice is committed to making your business better. We have a team of Clinicians and risk managers working to simplify your most complex claims

Complex Claims Medical Beneﬁts

Risk Management Pharmacy Analytics

WE LIVE SERVICE! Insurance • Risk Management • Surety Expertise

2100 Ross Ave. Suite 1200

Dallas, TX 75201 • 214.969.6100

www.lockton.com

JUNE 2022

We are Mold-Breakers, Risk-Takers and Industry-Shakers

At AccuRisk, we strive to shake up the industry by tailoring our innovations to meet the unique needs of our clients. We don’t want to just talk about doing things differently—we want to actually do things differently, with a touch of the AccuRisk difference.

Our Innovative Suite of Solutions Medical Stop Loss Plans backed by A+ rated carriers Dynamic Supplemental Coverage Options Customizable Captive Offerings Industry Leading Data Analytics and Cost Saving Actions Strategic Partnerships Across the Industry Seamless Level Funding URAC Accredited Case Management Services

Let us think outside the box for you. info@accurisksolutions.com | accurisksolutions.com | (312) 857-9100

HOLDINGS

JUNE 2022

NEWS The first part consisted of evaluating each nominated company’s workplace policies, practices, philosophy, systems and demographics. The second part consisted of an employee survey to measure the employee experience. The combined scores determined the top companies and the final rankings.

ROBERT HOUTON JOINS H.H.C. GROUP AS BUSINESS DEVELOPMENT ACCOUNT MANAGER H.H.C. Group is proud to announce the addition of Robert (Rob) Houton as Business Development Account Manager. Rob spent the last 25 years in government relations working on behalf of Fortune 100 companies, healthcare coalitions and educational institutions. He is also the Founder TEAM Vaccinate, a non-profit leading outreach, education, and advocacy efforts with underserviced communities in support of Covid-19 vaccinations.

For more information on the Best Companies to Work for in New York program, visit www.BestCompaniesNY.

com.

ABOUT NOVA Founded in 1982 and headquartered in Buffalo, NY, Nova is one of the largest third-party administrators of self-funded employee benefit programs in the nation, providing the health care solutions our clients need in the way they need them. And we go far beyond the basics. We are creative problem solvers who build custom solutions. Nova provides a unique, comprehensive array of services, including medical, dental, vision, COBRA, reimbursement account administration, and privatelabeled solutions. Nova also offers award-winning, in-house, integrated medical management programs. We are the stewards of our clients’ benefit plans, offering best-in-class partnerships, customized solutions, and personalized service. To learn more, visit

www.novahealthcare.com.

“Rob brings a combination of proven sales acumen and client service expertise”, said Dr. Bruce Roffé, H.H.C. Group’s President and CEO.

“His experience advocating with Congress and Federal Agencies on behalf of a broad range of clients will enable him to successfully represent HHC Group in the self-funded healthcare arena.” JUNE 2022

NEWS ABOUT H.H.C. GROUP H.H.C. Group is a leading national health insurance consulting company providing a wide range of cost containment solutions for Insurers, Third Party Administrators, Self-Insured Employee Health Plans, Taft-Hartley Plans, Health Maintenance Organizations (HMOs), ERISA and Government Health Plans. H.H.C. Group utilizes a combination of highly skilled professionals and advanced information technology tools to consistently deliver targeted solutions, significant savings and exceptional client service. H.H.C. Group's services include Claim Negotiation, Claim Repricing, Medicare Based Pricing, DRG Validation, Medical Bill Review (Audit), Claims Editing, Medical Peer Reviews/Independent Reviews, Independent Medical Examinations (IME), Case Management Utilization Review, Data Mining, Disease Management and Pharmacy Consulting. For additional information about H.H.C. Group and our services, visit www.hhcgroup.com or contact Bob Serber at rserber@hhcgroup.com or 301-963-0762 ext. 163. CAPTERRA RISK SOLUTIONS HIRES JEFF ELLINGTON AS SENIOR VICE PRESIDENT Alternative risk insurance consultant and captive manager Capterra Risk Solutions has appointed Jeff Ellington as senior vice president. He will be responsible for overseeing

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the captive formation process, including risk assessments, feasibility studies, organizational structure and design, and policy production. Ellington joins the Pennsylvania headquartered firm after a decade with North Carolina’s Atlas Insurance. There, he was vice president for marketing and business development and concentrated on group captives, workers compensation programs, medical stop loss programs, associations, and agency captives.

Ellington has over three decades of experience, working across the commercial insurance in sales, marketing, underwriting, and management. He began his insurance career in commercial insurance sales with Liberty Mutual insurance company and subsequently served on insurance company Crum & Forster’s national council of agents.

Alignment makes the difference. It’s how we chart your course to smarter, better, faster healthcare. A successful claim outcome and a positive member experience require the alignment of all parties, with transparency at its core. At Vālenz®, we engage early and often to assure alignment of the member, provider and payer across the continuum of the Claim Cost ArcSM. In doing so, we enable a fully Integrated Healthcare Ecosystem Optimization Platform to drive cost containment, value and balance in self-insurance. That’s how we give you the power to lower costs and improve member outcomes, so everyone in the ecosystem is strong, vigorous and healthy. Call today to start charting your course to smarter, better, faster healthcare: 866-762-4455

23048 N 15th Ave., Phoenix, AZ 85027 (866) 762-4455 • valenzhealth.com

JUNE 2022

As well as overseeing captive formation, Ellington will also coordinate captive renewals and claims handling and processing in his new role. According to the firm, he will work closely with account managers on captive operational issues, including procedures, best practices, and quality reviews. He also manages the business development team and is responsible for generating new captive business.

JEFF MEYER NAMED MEDICAL STOP LOSS NATIONAL SALES LEADER FOR NATIONWIDE

Columbus, Ohio – Nationwide is thrilled to announce that Jeff Meyer has joined Nationwide Specialty Insurance as the Medical Stop Loss National Sales Leader. Jeff is widely regarded as a subject matter expert in the self-insurance industry, representing his former employers at numerous industry conferences and virtual events, including the Society of Professional Benefit Administrators (SPBA), International Foundation of Employee Benefit Plans (IFEBP), Self-Insurance Institute of America (SIIA) and many others.

“Jeff is a highly experienced group employee benefits professional with an impressive record of success in sales leadership roles throughout his 30+ year career,” said Charles Hylton, Medical Stop Loss Program Director at Nationwide.

Coordinated, Concierge Care Brings Savings

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turn-key, self-insured health plan solution that gives members access to virtual primary care, a concierge-level Care Team, and so much more.

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Unlock the Power of Stop-Loss Automation Ringmaster Technologies is a cloud-based, healthcare software provider. We build our products exclusively to simplify, enhance and drastically reduce the complexity and time necessary for Stop-Loss quoting, contracting, and policy administration. We know the value of client relationships and are committed to helping you make them even stronger. Our cloud-based Stop-Loss software products include: Deliver productivity and strategic gains to your Stop-Loss marketing and procurement teams.

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NEWS

“I am excited to have someone with Jeff’s considerable talent, relationships and industry knowledge join the team. His proven record of establishing strong regional and national producer relationships, as well as partnering with other internal product divisions to develop effective crosssell strategies will be immensely valuable as we look to expand our brand recognition and national footprint in the stop loss market.” Prior to joining Nationwide, Jeff was National Sales Vice President (Chicago) and ultimately Head of Sales, National Vice President (New York) for stop loss/ organ transplant and captive businesses for AIG’s Benefit Solutions business. Jeff most recently led Berkshire Hathaway Specialty Insurance’s entry into the segment in 2016, where he was National Vice President of Sales of BHSI’s Stop Loss Division. Jeff can now be reached at Meyej19@nationwide.com.

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ABOUT NATIONWIDE Nationwide, a Fortune 100 company based in Columbus, Ohio, is one of the largest and strongest diversified insurance and financial services organizations in the United States. Nationwide is rated A+ by both A.M. Best and Standard & Poor’s. An industry leader in driving customer-focused innovation, Nationwide provides a full range of insurance and financial services products including auto, business, homeowners, farm and life insurance; public and private sector retirement plans, annuities, mutual funds and ETFs; excess & surplus, specialty and surety; pet, motorcycle and boat insurance. Visit www.nationwide.com. Follow us on Facebook and Twitter.

Protecting plans and patients across the U.S.

297

97.2%

On average,

aequum has

aequum has handled

aequum resolves

generated a savings

claims in all 50 states

claims within 297

of 97.2% off

days of placement

disputed charges for self-funded plans

1111 Superior Avenue East Suite 2500 Cleveland, OH 44114

P 216-539-9370 www.aequumhealth.com

No Guarantee of Results – Outcomes depend upon many factors and no attorney can guarantee a particular outcome or similar positive result in any particular case.

HCC Life Insurance Company operating as Tokio Marine HCC - Stop Loss Group

We continually search for fresh approaches, respond proactively to market changes, and bring additional flexibility to our products. Our clients have benefited from our expertise for over 45 years. Simple. Secure. Smart. Because Service Matters TM (S3) is our latest initiative and the foundation of our new service model for TPAs. This partnership allows us to collect first-dollar medical and Rx claims data on all claimants from participating TPA partners. The goal of S3 is to help reduce the friction in stop loss interactions between Tokio Marine HCC - Stop Loss Group, TPAs, and the producers who rely on quick and efficient processes for their clients. Our purpose is to be prepared for what tomorrow brings, contact us for all your medical stop loss, captive, Taft-Hartley and organ transplant needs.

Visit us online at tmhcc.com/life

Tokio Marine HCC - Stop Loss Group A member of the Tokio Marine HCC Group of Companies TMHCC1171 - 06/2022

JUNE 2022

SELF INSURANCE INSTITUTE OF AMERICA, INC. 2022 BOARD OF DIRECTORS

CHAIRWOMAN OF THE BOARD*

DIRECTORS (CONT.)

Kari L. Niblack, JD, SPHR CEO ACS Benefit Services Winston Salem, NC

Laura Hirsch Co-CEO Aither Health Carrollton, TX

CHAIRWOMAN ELECT* Elizabeth Midtlien Vice President, Emerging Markets AmeriHealth Administrators, Inc. Bloomington, MN

TREASURER AND CORPORATE SECRETARY*

John Capasso President & CEO Captive Planning Associates, LLC Marlton, NJ

DIRECTORS Thomas R. Belding President Professional Reinsurance Mktg. Svcs. Edmond, OK Amy Gasbarro Chief Operating Officer Vālenz Phoenix, AZ

* Also serves as Director

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Deborah Hodges President & CEO Health Plans, Inc. Westborough, MA Lisa Moody Board of Directors Chair Renalogic Phoenix, AZ Shaun L. Peterson VP, Stop Loss Voya Financial Minneapolis, MN

SIEF BOARD OF DIRECTORS CHAIRMAN Nigel Wallbank Preisdent Leadenhall, LLC Ocala, FL

PRESIDENT Daniél C. Kimlinger, Ph.D. CEO MINES and Associates Littleton, CO

DIRECTORS Freda Bacon Administrator AL Self-Insured Workers' Comp Fund Birmingham, AL Les Boughner Chairman Advantage Insurance Management (USA) LLC Charleston, SC Alex Giordano Chief Executive Officer Hudson Atlantic Benefits Bellmore, NY Virginia Johnson Strategic Account Director Verisk/ISO Claims Partners Charlotte, NC

Nobody delivers like we do. ClaimDOC’s reference based pricing program is unlike any other. Experience savings and a caring team who is always there to go above and beyond for members.

“Fatima was knowledgeable, quickly calmed me down, and put my fears to rest.”

“I can’t tell you enough how pleased we are with getting all of our physicians on board.”

“I've never had such a good customer service experience in my lifetime!”

With ClaimDOC you’re in the driver’s seat to create a rich and sustainable healthcare plan using RBP principles. Our approach to elevate the member experience, while diligently managing risk is what sets us apart.

Learn more at Claim-doc.com or call (888) 330-7295

JUNE 2022

SIIA NEW MEMBERS JUNE 2022

SILVER CORPORATE MEMBERS

REGULAR CORPORATE MEMBERS

Ben Lewis Partner, Strategic Healthcare Practice Leader Consiliarium Group, LLC Pittsford, NY

Lisa Cady Comptroller Core Management Resources Macon, GA

David McNeal VP of Business Development Currus, Inc. Topeka, KS

Tom Denniston Account Executive Denniston Data Inc. Corpus Christi, TX

Kristof Wild Newpath Mutual Insurance Company Covington, KY

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Brian Brown VP Sales & Marketing Presbyterian Health Albuquerque, NM

William Stafford President Rx Help Centers Indianapolis, IN Dustin Carlson President SRA 831(b) Admin Meridian, ID

Mary Margaret Irish CEO The Benefit Group Omaha, NE

Shannon Ganzer Marketing & Sales Coordinator Walmart Health Virtual Care Phoenix , AZ

Madeline Smith Founder/CEO MADDRS Texarkana, TX

EMPLOYER MEMBERS David Krysiak Chairman L&M Warehousing, Inc. Glen Mills, PA

Price Comparison Machine Readable Files Provider Directories

zelis.com

Qualified Payment Amounts Arbitration Defense Advanced Explanation of Benefits

Pay for care, with care.

Stability for those balancing risk and reward.

Those who self-fund a health plan seek autonomy and control over their benefits program and costs. It can be rewarding, but it does come with risk. Stop Loss protection from HM Insurance Group works to mitigate that risk for self-funded employers should high-dollar claims arise – delivering steadiness to the performance and confidence in the outcome. Find more on hmig.com.

CONNECT WITH ONE OF OUR EXPERTS ON OUR INSURANCE AND REINSURANCE OPTIONS: Employer Stop Loss: Traditional Protection • Small Group Solutions • Coverage Over Reference Based Pricing Managed Care Reinsurance: Provider Excess Loss • Health Plan Reinsurance

In all states except New York, coverage may be underwritten by HM Life Insurance Company, Pittsburgh, PA, or Highmark Casualty Insurance Company, Pittsburgh, PA. In New York, coverage is underwritten by HM Life Insurance Company of New York, New York, NY. The coverage or service requested may not be available in all states and is subject to individual state approval. MTG-3355 (R3/21)

The Self-Insurer, June 2022

Articles inside

FEDERAL APPEALS CASE COULD CHANGE THE LANDSCAPE OF INSURANCE REGULATION

NO SURPRISES ACT: OPEN NEGOTIATION STRATEGIES & COMPROMISES

A LEVEL-HEADED APPROACH

NEWS FROM SIIA MEMBERS

HIPAA SURROGACY EXPENSES