2024 Employer Mandates: Navigating TIDE in Health Plan Administration

Liliana Salazar, Chief Compliance Officer Western Region, HUB International

Liliana Salazar, Chief Compliance Officer Western Region, HUB International

2024 will require employers to address a “TIDE” of new mandates focusing on Transparency, Inclusion, Disclosure, and Enforcement (TIDE).

Transparency

The 2021 Consolidated Appropriations Act (CAA) introduced new disclosure requirements to promote transparency in healthcare. These requirements apply to employers, insurance carriers, third-party administrators (TPAs), and Prescription Benefit Managers (PBMs), and most are recurring in nature. They apply to both insured and self-insured plans of any size.

Prescription Drug Data Collection (RxDC Reporting): Group health plans must disclose prescription drugs and certain health plan cost information to the Department of Health and Human Services (HHS) under the RxDC Reporting rules. Employers should confirm that their insurance carrier, TPA and PBM will file the RxDC reports on their behalf, and if so, identify the necessary prescription and plan and vendor’s submission deadline. If the employer fails to meet the vendor’s deadline, they must report any information not filed by the vendor. RxDC reports must be filed via the CMS HIOS website before June 1, 2024.

Posting Machine-readable files: Group health plans must post machine-readable files on a public site that does not require a login or a password. Insurance carriers are typically responsible for posting files for insured medical plans, while self-funded/level-funded plans are responsible for complying with the posting requirements. However, the self-funded plan may contractually delegate this responsibility to their TPA. Plans must comply with the posting requirements by July 1, 2024.

Gag Clause Attestation Reporting: All plans must attest to HHS that they have not entered provider contracts with clauses that restrict their access to cost and quality of care information or the ability to share de-identified information in 2023. Carriers report for insured medical plans, while the self-funded employer/sponsor completes the attestation for their plan unless their TPA attests on their behalf. The attestation must be filed electronically via the HIOS website no later than December 31, 2024.

Inclusion

2024 will also require employers to review their plans and benefit offerings to ensure they comply with the new protections for covered participants.

No Surprises Act: The No Surprises Act protects participants against balance billing by out-of-network (OON) providers in emergency rooms, in-network facilities, or air ambulance services. Plans must include revisions to the No Surprises Act based on new DOL guidance and reprocess claims accordingly.

"Returns must be distributed to employees and covered participants by March 1, 2024, and e-filed with the IRS by April 1, 2024. Paper filings will only be allowed for plans filing ten returns or fewer."

Mental Health Parity and Addiction and Equity Act (MHPAEA): Plans should be prepared to provide the DOL with the results of their Nonquantitative and Nonqualitative Treatment Limitations (NQTL) tests and ensure their plans do not include blanket exclusions for ABA therapy, eating disorders, or require pre-certification for certain mental health or substance abuse services that do not extend to medical care.

ACA Section 1557: In 2024, HHS will very likely release the final ACA Section 1557 regulations. The revised regulations will prohibit federal fund recipients from discriminating against LGBTQ+ community members regarding healthcare access and other employment protections, mandate employee inclusion training, and comply with new notification requirements. These regulations face possible litigation as there is no automatic religious exemption for entities that exclude gender-affirming treatment and other medical procedures due to religious beliefs.

Disclosure

Employers must also focus their attention on mandated IRS and state tax agency disclosures.

ACA and State Reporting: Employers who are Applicable Large Employers (ALEs) must closely review their 2023 Forms 1094/1095-B/C, as the IRS will assess new penalties for filing incomplete or inaccurate returns. Returns must be distributed to employees and covered participants by March 1, 2024, and e-filed with the IRS by April 1, 2024. Paper filings will only be allowed for plans filing ten returns or fewer. Employers with covered participants in California or Massachusetts should be prepared to distribute Forms 1095-B/C to covered participants by January 31, 2024, rather than March 1, 2024. Individual mandate reporting requirements for Rhode Island, New Jersey, and Washington D.C. follow federal guidelines for distributing returns to covered participants but may have different state agency filing deadlines.

Enforcement

We anticipate increased enforcement action from the IRS, DOL, HHS, and other agencies in the following areas:

ACA Employer Mandate and Reporting: With the ACA affordability safe harbor decrease from 9.14% to 8.39% for 2024, employers should pay special attention to calculating employee plan contributions, as offering an affordable plan to employees will become more challenging. In addition, as most ALEs and self-funded will be mandated in 2024 to e-file Forms 1094/1095-B/C with the IRS, it will be easier for the IRS to impose penalties on employers who file incomplete or incorrect returns.

MHPAEA: The DOL has announced that in 2024, it will audit group health plans to ensure that they do not discriminate in treatment or mental health and substance abuse service access.

HIPAA Compliance: Due to increased cyber-attacks affecting employers and group health plans, the Office of Civil Rights will closely monitor breaches under the HIPAA Privacy, Security, and HITECH Act. Plans must ensure they have updated HIPAA policies and procedures, trained staff on HIPAA requirements, entered business associate agreements with vendors accessing PHI, and regularly monitored their networks and systems to prevent HIPAA breaches.

As employers embrace the new year, they should address the TIDE affecting their group health plan administration. Having an open line of communication with vendors and carriers will ensure employers timely comply with these new mandates.