If you are an employer within the jurisdiction of the Ninth Circuit Court of Appeals and offer cash payments to employees who opt out of group health coverage (“opt-out payments”), what you don’t know about the court’s 2016 opinion in Flores v. City of San Gabriel may hurt you.0
Specifically, the Ninth Circuit court held that opt-out payments had to be included in the regular rate of pay used to calculate overtime payments under the federal Fair Labor Standards Act (FLSA). In May 2017 the U.S. Supreme Court declined to review the opinion, making it controlling law within the Ninth Circuit, and hence in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington.
The Flores case arose when a group of active and former police officers in the City of San Gabriel sought overtime compensation based on opt-out payments they received between 2009 and 2012 under a flexible benefits plan maintained by the City. The plan required eligible employees to purchase dental and vision benefits with pre-tax dollars; they could also use the plan to purchase group health insurance. Employees could elect to forgo medical benefits upon proof of alternative coverage; in exchange they received the unused portion of their benefits allotment as a cash payment added to their regular paycheck. The opt-out payments were not insubstantial, ranging from $12,441 annually in 2009 to $15,659.40 in 2012. The City’s total expenditure on opt-out payments exceeded $1.1 million dollars in 2009 and averaged about 45% of total contributions to the flexible benefits plan over the three years at issue. ...
Employers sometimes allow former employees to remain on their health insurance plan for some period of time after termination of employment at no cost or reduced cost to the terminated employee. While this may seem like a generous offer to include in a severance agreement, there can be unintended consequences for both the employer and the former employee if not handled correctly. Questions often arise regarding the interaction of severance agreements and health benefits.
3 tips for employers contributing to or continuing a terminated employee’s health insurance:
Educate the terminating employee about their coverage options. Make sure that the individual understands that if they accept your offer of COBRA coverage, they may not be able to purchase individual coverage through the Marketplace until the next Marketplace annual enrollment. Individuals who lose job-based coverage generally have 60 days to purchase coverage through the Marketplace. If they stay on COBRA beyond the Special Enrollment Period, they could lose that option. Maintaining COBRA coverage (at a higher cost than Marketplace coverage) until other employer-sponsored coverage becomes available or the next Marketplace annual enrollment could be the individual’s only option for avoiding a gap in coverage and tax penalties.
Offer the terminating employee COBRA. If the individual is left enrolled as an active employee, fully-insured employers may risk violating the medical plan eligibility requirements in their insurance contract. Similarly, self-funded employers may violate the coverage provisions of their stop-loss agreement. Consequently, failure to offer COBRA can expose an employer to significant financial liability for claims not paid by an insurance carrier or stop-loss insurer. Also, it ensures that coverage obtained through a new employer will pay primary to COBRA coverage. If you want to pay all or a portion of the individual’s coverage, work with legal counsel to draft a severance agreement that includes an employer contribution to offset the cost of COBRA coverage.
Pay the COBRA premium directly. If the severance agreement includes an employer contribution toward the cost of COBRA coverage, minimize tax consequences by paying the COBRA premium directly to the plan instead of reimbursing the former employee. COBRA premium payments are not treated as taxable wages if made by the employer directly, or if the employer requires verification of or retains control over the purchase of COBRA coverage (such as requiring substantiation of the month’s premium payment prior to providing reimbursement). If you offer a terminated employee cash to purchase their own individual health insurance as part of a severance agreement, use caution. Although this might seem to provide the terminated employee with greater flexibility to choose the type of health insurance coverage that best fits their needs, it may result in the creation of a new ERISA group health plan and additional excise tax liability, among other compliance obligations. ...
Visits to new primary care physicians (PCPs) increased significantly for patients changing insurers relative to patients staying with the same insurer.
For patients initially covered by Medicaid, the monthly rate of visits to new PCPs increased by an average of more than 200 percent after changing insurers, and their rate of visits to new specialists rose by almost 50 percent.
For patients initially covered by private insurance, changing carriers was associated with a nearly 50 percent increase in new PCP visits while visits to new specialists fell slightly. The overall decline in new specialist visits was caused by lower use among patients who faced higher deductibles after changing plans.
These average utilization changes reflected larger changes in use shortly after the insurance switch that diminished over the subsequent year.
The rate of ED visits increased significantly for Medicaid patients in the month of their insurance transition, relative to levels seen in the four to twelve months before the transition, but quickly returned to baseline levels.
...the commonly held, but mostly false, belief that more preventive care will reduce overall health care costs.
As counterintuitive as it seems, preventive measures generally increase rather than decrease costs. This in no way suggests that we shouldn’t pursue preventive measures. It simply means that we shouldn’t spend time dreaming up ways to spend the savings that will result.
How can reality stray so far from what seems to be obvious logic? Let’s illustrate the conundrum by way of a thought experiment — the hypothetical costs involved in a hypothetical Disease X:
COMMON SENSE: Suppose one out of 10,000 people will contract a potentially fatal Disease X, which — if not caught early — costs $100,000 to treat. Catching the illness early requires a $5 test, and the early treatment costs $20,000. So, if we test and treat the one sick patient, we enjoy $100,000 minus $5 minus $20,000 (equals) $79,995 in savings. So, common sense might suggest that prevention saves money.
WIDESPREAD TESTING: But the first problem is that we don’t know in advance who needs an early screening. So, practically speaking, we have to conduct widespread testing. Testing all 10,000 people means $50,000 in tests to find the one unfortunate who has Disease X. Now, early detection saves $100,000, but we spend $50,000 for tests and $20,000 for treating the one sick person. Net savings are now $30,000, rather than $79,995. Still, some savings are better than none.
FALSE POSITIVES: But, wait — as the TV ad says — there’s more. The test isn’t perfect and incorrectly flags two healthy people as having Disease X. We treat them, too, at a cost of $40,000, but there are no gross savings from those treatments, since neither would ever have become ill with Disease X. Now, we save $100,000 by detecting the one case early on. But we spend $50,000 in tests and $60,000 in early treatments. On net, our prevention program now amounts to a $10,000 loss — rather than savings.
IATROGENESIS: Here things get worse. One of the two false-positive patients suffers adverse consequences from the early treatment. (The technical term is “iatrogenesis.”) We spend $30,000 to reverse the damage caused by the original treatment, which we omniscient readers know was unnecessary in the first place. The prevention program now cuts out $100,000 in costs by averting one case of Disease X, but requires us to spend $50,000 for tests, $60,000 for treatments, and $30,000 for undoing the side effects of one patient’s Disease X treatment. The net loss is now $40,000.
We can add yet another complication. Preventive care often has the effect of extending life. While that is admirable and desirable, a longer life often means surviving long enough to contract even more expensive maladies (think of cancer or Alzheimer’s) that would never have occurred over a shorter lifespan.
And so it goes with most preventive care. Again, that doesn’t mean we shouldn’t engage in preventive care. It only means we ought to expect our collective health care expenditures to rise, not drop, as we increase our preventive efforts. ...
This is not a new concept. We've known it for years - but hey - that never stops politicians from repeating a good talking point, right? See also:
Covered California on Tuesday announced that health insurance rates on the state’s health insurance exchange created under the Affordable Care Act will increase by an average rate of 12.5 percent for 2018 plans.
Peter Lee, CEO of the exchange, said the increase normally would have been just under 10 percent, but for a 2.8 percent tax on health insurers that resumes next year.
But a bigger threat — the possibility that the Trump administration kills certain Obamacare subsidies — would increase rates by another 12.4 percent, he said, though Covered California has a work-around plan to avoid that scenario. ...
Anthem Blue Cross of California will leave markets that comprise about half of its enrollment — except for Santa Clara County, the Central Valley and certain Northern California counties.
That means 153,00 of those enrolled in Anthem plans through the exchange today will need to select a new plan for 2018. ...
Anyone who earns between 139 percent and 250 percent of the poverty threshold — between $34,200 and $61,500 for a family of four — [has also been] eligible for additional reductions, which lower out-of-pocket costs such as co-pays and deductibles.
About 7 million Americans, including roughly 650,000 Californians, receive those extra subsidies. And the federal government reimburses insurers on the exchanges about $7 billion to reduce the cost of the co-pays and deductibles for those low-income people.
[The end of those] subsidies would send many premiums soaring because health insurers would have to pick up those costs themselves, and many companies would also likely flee the markets, experts say.
Covered California continues to seek clarification from the Trump administration about its intentions regarding the cost-sharing payments. But Lee said if the exchange doesn’t receive confirmation by the end of the month that the payments will continue, an additional average 12.4 percent surcharge will be attached to plans when enrollment opens Nov. 1.
The above article from the Mercury News did an adequate job in summarizing the rate increases and exit of Anthem, however, it did not explain the illegal cost reduction subsidies that have been forbidden in federal court. In an attempt to not rock the boat too much (believe it or not), the Trump administration has been continuing these payments but that practice is not likely to continue. Michael Cannon at the CATO Institute explains:
Another [issue] is the illegal “cost-sharing” subsidies President Obama began issuing – and that President Trump is still issuing – to insurers participating in ObamaCare’s Exchanges. In a case where the House of Representatives challenged the payments, a federal judge ruled that issuing those payments “violates the Constitution” and ordered them to stop, pending appeal. The Obama administration was pursuing an appeal, but the Trump administration has not indicated whether it would continue to appeal that ruling or enforce the judge’s order. Trump must do one or the other.
Two of President Trump’s cabinet picks have practically forced his hand on this issue.
When the federal district-court judge issued her ruling striking down the cost-sharing subsidy payments, Health and Human Services Secretary Tom Price was a Republican member of Congress. He issued a statement endorsing the ruling:
Today, Congressman Tom Price, M.D. issued the following statement after a federal judge ruled in favor of House Republicans’ lawsuit against Obamacare, saying that the Administration does not have the power to spend money on “cost sharing reduction payments” to insurers without an appropriation from Congress:
“The ruling proves a momentous victory for the rule of law and against the Obama Administration’s overreach of Constitutional authority,” said Congressman Tom Price, M.D. “This historic decision defies the Obama’s Administration’s ask that the courts disregard the letter of the law and reasserts Congress’s power of the purse as defined by our nation’s founders in Article One of the Constitution.”
“In recent weeks, we’ve seen insurers announce that they will exit the exchange markets in 2017, further deteriorating patients’ access and choice to health care plans that they want. This is yet again proof that Obamacare is on an unsustainable path, and House Republicans must remain committed to repealing and replacing this law. As a member of the Health Care Task Force, I’m honored to be working with my colleagues to advance positive, patient-centered solutions to the challenges in our health care system."
Price has made clear his view that Congress did not appropriate funding for these payments, and that continuing to make them would constitute executive overreach and violate the rule of law. If President Trump chooses to appeal the lower-court ruling, he would put Price in a situation where he would have to help implement a policy that he considers unconstitutional. Price arguably would have to resign.
Yesterday, Trump’s attorney general Jeff Sessions expressed his view that the payments are unconstitutional and that the lawsuit challenging those payments “has validity to it.” If Trump chooses to appeal the lower-court ruling, Sessions would be the guy who carries out that appeal. It would be…awkward for him to defend a policy he believes to be unconstitutional.
