July 07, 2022
In the wake of the recent Supreme Court decision on Dobbs v Jackson Women’s Health Organization (Dobbs) employer health plan sponsors face unprecedented uncertainty, including potential civil and criminal legal risks over reproductive health care coverage and related programs.
Business Group on Health is now working to ensure that the relevant federal agencies are alerted to the urgent need to protect health plans, employer plan sponsors, their personnel, patients and other stakeholders from severe state action, and to provide technical adjustments to assist plans navigating design changes.
In recent meetings with the U.S. Secretaries of Labor and Health and Human Services, and with representatives from the U.S. Treasury Department, the secretaries requested that Business Group on Health and others partner with them to ensure that the departments are informed about the concerns, challenges and need for guidance or other assistance as health plans experience and adjust to the changes arising from the Supreme Court’s Dobbs decision. On July 6, the Business Group submitted an initial set of detailed comments and requests for assistance to the departments on behalf of our members.
Business Group on Health’s comments and requests are nonpartisan, as is customary, and focus on the uniformity and certainty principles underpinning employer health benefit plans governed by ERISA. The Business Group’s comments and requests also aim to secure maximum protection and flexibility for employer plan sponsors so that they can continue to offer benefits that best meet the needs of their workforces.
Our letter requests that the departments:
Protect plans and individuals by
- Supporting and defending ERISA preemption to the greatest extent possible. ERISA’s broad preemption provisions offer strong federal legal protection for employer plans against state overreach. The departments must act now to ensure that ERISA serves as a deterrent against destructive challenges.
- Taking additional steps including rulemaking, if needed, to clarify HIPAA privacy provisions and protect covered entities, including employer plans, and others that act in accordance with HIPAA from overly aggressive state action. Health plans need to be able to protect health information without fear of state reprisals for following federal law.
Make technical adjustments and accommodations recognizing the uncertainty facing plans by
- Issuing guidance recognizing a universal distinction between medical travel benefits and major medical coverage, and permit compliant, tax-free medical travel benefits to be offered pre-deductible without disqualifying an individual from contributing to an HSA and without regard to whether it is offered within a group health plan.
- Temporarily accommodating and providing relief regarding expected volatility in reproductive health benefit coverages and medical travel benefits during Mental Health Parity and Addition Equity Act enforcement and assessments.
We look forward to continuing to partner with the departments, welcome discussions with them about these and other issues, and expect to provide additional comments and suggestions as employer plan sponsor needs and experiences evolve. Members of Business Group on Health may contact our Policy & Advocacy Team at any time to discuss these matters or provide additional information for future efforts.