Have Health Benefits Become A Huge Personal Liability For Employers?
Yes. And it's worse than you think.
NOTE: To my enthusiastic readers in London, Prague, and other Capitals of the World…this is just something you can sorta hate read?
I love reading about compliance. I love writing about compliance. And I love the way that compliance concerns, raised deftly, can help humans advocate for their health. I adore the way compliance can be wielded to help shield employers from predatory healthcare pricing.
This is a guide, to Relentless Documentation of your living and breathing compliance program when it comes to the Combined Appropriations Act of 2021, and its fiduciary role for plan sponsors.
Two words: What kind of responsibility do employers have for employee health plans?
Fiduciary Duty
Yeah, that got some attention. I am PUMPED.
Fiduciary duty is not a big deal. Unless it’s your responsibility. Then it is. US Health benefits are tax-exempt because of a law passed in 1974. That Law, ERISA, created a fiduciary duty for plan sponsors. In 2021, this was reinforced, but specifically for health benefits. If you work at a company in senior leadership, this may be…you. Did you have to fill out an attestation for the DOL?
If you are a peon, with employer-based health care, it is a duty to you. As a member!
Practically the era of scam health benefits is over. Not everybody sees it yet…but the bell will toll for us all.
What is Scam Healthcare? One example:
Your healthcare plan is required to have an updated and accurate directory. Your employer is required to purchase a plan that keeps that directly updated. Someone at your employer is personally on the hook for that accuracy!
Call to Action:
To protect your company, every time you search for a doctor in “the network,” and you call them, and they're not in the network? You should screenshot whatever you're looking at, and you send it to corporate compliance. The email is usually just compliance@yourcompay.whatever
But making your company aware of a compliance issue? This allows them to act on it. They need to contact their broker, who also has personal responsibility. And that human needs to call their buddy over at Blue Cross, United, Cigna, Aetna, or whoever and ask for the directories to be appropriately updated.
Legally, they have to be updated every month. And they need to be accurate. If they are not, the health plan is out of compliance, and that means a plausible breech of fiduciary duty for your boss. The corporate inbox for compliance generates the rationale to have to change. The avalanche of these emails generates the actual pressure on the plan to get its act together. Here is podcast about this problem:
You can repeat the above process for any nonsense in Healthcare. Have you been asked to obtain prior authorization the most effective treatment for depression that is broadly available? Your depression could be in remission in days to weeks with no medications! If your insurance company is asking for prior authorization, and demanding you have failed prior treatments, well that may be a compliance problem. So if you hate prior authorization, complain about it to Compliance! Here is the journal article by future Nobel Winner Nolan Williams and Colleagues about why it’s a fiduciary duty to cover it!
Etc. etc. etc. Everything that's ever annoyed you about your health plan? It may have just became a Compliance problem for your company. And most importantly, it became a personal liability for the maybe wealthy humans than are running those companies. And that means by letting them know? It lets then both save on plausible massive fines and advocate hard for better health benefits in keeping with the actual laws.
Another example of how this can make the world a better place for both yourself and your company is as follows: are there any psychiatrists in network? No. Not an average. But if they need to be more in network…because somebody's gonna lose a lot of money if they aren't in network? Well, now they have an incentive to solve that problem. So instead of paying less than market rates, they might pay enough to get doctors to actually take that insurance plan. Not because they're kind. Not because they care about your mental health. But because very wealthy people will lose a phenomenal amount of money if they don't check that box. And that means they have an incentive to make mental health care something you can actually get.
Helping corporate compliance CYA is the gift that keeps on giving! Let them know. Even just forwarding this article, right now, to Compliance at any given company? If there was a lawsuit about the topic? This article in that email? It creates liability in that enforcement action. It documents that they knew that there was a problem. I'm going to make it even easier:
Dear corporate compliance,
This article in your inbox serves to document your notification about the following common issues with health coverage, and encourages you to take action to preserve your compliance with all appropriate regulations.
Pharmacy benefit manager contracts which charge extravagant mark ups. If your members are paying more than than they would with Mark Cuban’s CostPlus, or CapitalRx, or any number of other options, you're out of compliance! Yes, Carelons’ markups (like this) count:
Manufacturer list:
CarelonRx “Discount”…for my personal medicine by the way:
This might even be covered under California’s Misleading Advertising laws too. CarelonRX is a wholly owned subsidiary of Anthem…so claiming that taltz has an average price of 13k and is discounted to 6,777.41? Wait, the list price is less? But… Elevance aka Anthem aka Carelon aka CarelonRx leadership subscribe to this newsletter…(👋)…the following is problematic…since now we know it hits an Elevance inbox…
… over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised. Any violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that imprisonment and fine.
Network access: if anyone on your plan has to wait more than 10 days for a behavioral health appointment, for any condition, you're out of compliance! Thanks ACA built on ERISA! I was going to add the link…but someone’s job depends on it.
If anyone on your plan requires gender affirming care, and you live in the state of bans it, you're out of compliance. I helped produce the national educational content for AACAP! So, I will be happy to testify to this fact.
If anyone in your company makes less than 400% of the federal poverty line as a household, and that means 60% of all American families? If they go to a not-for-profit hospital… and they're not offered a patient assistance program…and your plan pays the full bill?… you are out of compliance!
If you don't cover all appropriate screenings as recommended by the US Joint Protective Services task force at zero co-pay, you are out of compliance.
If your broker hasn't disclosed any and all financial relationships with the products that are selling you, and given those disclosures, the plan is still in the best interest of the members, then you're out of compliance.
If you team members live in a state that has a ban on abortion, you out of compliance. It is medically necessary per ACOG. And they set the standard—not your state lawmakers.
Have you checked if your plans insurance broker has use the Health Rosetta plan grader? If they have, that'll do a good job of helping cover you.
Put corporate compliance on notice, and maybe, just maybe, they'll stop buying health insurance that's a total scam. And possibly, maybe, in the states in which it is illegal to provide full and appropriate coverage, a reckoning is coming for reckless lawmakers’ breathtaking mendacity.
You are more than welcome,
Your friendly neighborhood compliance enthusiast, Owen Muir, M.D.
You don’t have to answer this, but I am so curious what costs $13.8K