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3 ways PPACA compliance is getting real

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Since 2008, benefits lawyers have been telling employers and health insurers about the kinds of regulatory changes the Obama administration might make.

Since 2010, lawyers have been helping clients understand Patient Protection and Affordable Care Act (PPACA) provisions, regulations and interpretive documents, and comply with basic PPACA requirements.

Garrett Fenton, a PPACA specialist at Miller & Chevalier, who advises other lawyers at his firm on a wide range of PPACA issues, said he’s now starting to see PPACA work going, a little, beyond PPACA 101 issues.

Garrett Fenton

See also: What the PPACA exchange cops hope to bag

The ruling in favor of the U.S. Department of Health and Human Services (HHS) in the King v. Burwell case may be accelerating that ripening process.

If the court had ruled against HHS, members of Congress might have used the need to come up with an individual health insurance market rescue plan as an opportunity to make major changes in the law, Fenton said. Now that the Supreme Court has given HHS permission to continue to offer access to PPACA premium tax credits through HHS-established PPACA exchange programs, “we know the exchanges are here to stay,” Fenton said in a recent interview. “The employer mandate is in effect in all states.”

“That opportunity is effectively gone,” Fenton said.

See also: Your PPACA Compliance Checklist

For a look at some of the workaday PPACA matters that are making their way into Fenton’s inbox, read on.

Birth control

1. Contraceptive coverage accommodation requests

The U.S. Department of Health and Human Services (HHS) generally requires employers to include coverage for birth control services and products in their basic preventive services packages.

The U.S. Supreme Court held, when it ruled on the Hobby Lobby case, that under the federal Religious Freedom Restoration Act of 1993 (RFRA), HHS should try to provide reasonable accommodations for employers’ religious practices.

Fenton said his firm is getting a steady stream of requests about how family-owned employers can ask for accommodations.

“We see it most frequently on the insurer side,” Fenton said. Employers are asking the insurers for help, and insurers are asking their lawyers for advice about how to proceed, Fenton said. 

Fenton has not heard of any accommodation requests from employers with concerns involving benefits other than birth control benefits. Members of the Jehovah’s Witnesses community do not normally accept blood transfusions, for example, but Fenton said he has not heard of any employers asking for exemptions from having to include coverage for blood transfusions in their essential health benefits package.

See also: PPACA auditors are out there

A hand taking notes

2. Questions

Fenton said he is also starting to hear about a small but noticeable stream of pleas for help from employers that are getting questions from the Internal Revenue Services (IRS) or the U.S. Department of Labor about PPACA-related issues, such as the structure of wellness programs, and whether plans have paid their Patient-Centered Outcomes Research Institute (PCORI) fees.

In most cases, Fenton said, those questions arise when the IRS or Labor Department conducts a general review of an employer’s benefit plan and ends up flagging possible PPACA compliance concerns along with other concerns.

“Some are more detailed than others,” Fenton said. In some cases, Fenton said, agencies ask employers to send specific types of documents to back up their answers to the questions.

“That could lead to some sort of further enforcement,” but, at this point, Fenton said, he has not heard of the document production letters leading to more intense enforcement activity.

 See also: 5 Labor Department PPACA audit insights

Men and women in suits. Blank stares

3. Interactions with the agencies that ask the questions

Fenton said he has already had personal contact with federal officials in connection with the document production letters.

Agency officials seem a little less certain about how to proceed than when they are dealing with more settled areas of regulation, but the officials’ level of expertise and helpfulness seems to otherwise be comparable to that of federal officials who are working with other benefits compliance matters, Fenton said. 

See also: Agency highlights PPACA whistleblowing

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