Pandemic Advice from DOL, IRS, and OIC

Government response to the Coronavirus has included a wide range of emergency measures governing health plan administration. Some of these measures address dislocations caused by sudden change in employment status while others address administration of benefits for employees marooned at home. The fast pace of change wrecks the predictability required for health care benefits tied…

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New HIPAA Risk Assessment Tool

The Office of the National Coordinator for Health Information Technology (ONC), in collaboration with the HHS Office for Civil Rights (OCR) just posted an updated Windows only version of its HIPAA risk assessment tool (SRA). I know; lots of exciting acronyms, abbreviations, and labels! You can download the new software on the government’s Health IT…

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Washington Revises Bona Fide Association Filing Standards

The Washington Insurance Commissioner (OIC) has proposed new rules to codify current procedures for filing large group health plans for bona fide associations. Under current requirements, the agency provides instructions for filing association health plans qualifying as a single large group plan under ERISA rather than rules governing these filings. The OIC requires that insurance…

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New Washington Rules for almost bona fide AHPs

The Washington Insurance Commissioner (OIC) adopted emergency rules governing association health plans (AHPs) created under the recently liberalized Department of Labor (DOL) standards for bona fide AHPs. The liberalized standards allow loosely affiliated small businesses to become eligible for treatment as a large group plan under ERISA. Under the DOL regulations which took effect for…

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DOL Creates Two Kinds of AHPs – “Old School” and “New Age”

The U.S. Department of Labor (DOL) issued final regulations liberalizing standards for association health plans (AHPs) that DOL will recognize as single, large group health plans. The final regulations permit a more tenuous connection among participating employers and allow sole proprietors without employees to be considered employers. But the biggest change is the creation of…

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Trump Signs Order to Set AHPs Free

Today President Trump signed an Executive Order with significant implications to both Obamacare and health insurance markets in general. Here are highlights from the Order which will be reviewed in more detail later. Loosen traditional DOL interpretations of “bona fide” association to permit more diverse associations with less in common among the employers. “Sec. 2.…

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Judge Denies Associated Industries Motion to Dismiss DOL Lawsuit

Last week, Judge Rice denied Associated Industries Management Services and Associated Employers Trust motion to dismiss the Department of Labor lawsuit alleging breach of fiduciary duties under ERISA. The federal court later accepted the parties agreed extension of time required for Associated Industries to file an answer to the DOL complaint. The defendants will have until…

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Washington Insurance Commissioner Adopts Prior Authorization Rule

In June, the Washington Insurance Commissioner adopted new rules creating uniform standards for health plan procedures for prior authorization of health care services. The new rules take effect for health plans and stand-alone dental and vision plans issued or renewed after January 1, 2018 with rules governing online prior authorization taking effect November 1, 2019.…

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Associated Industries v DOL update

In February, the Department of Labor (DOL) sued Associated Industries of the Inland Northwest, Associated Employers Health and Welfare Trust, Associated Industries Management Service, Inc. (AIMS), and several individuals responsible for managing the Trust. DOL alleges “fiduciary breaches, prohibited transactions, and knowing participation in same.” The thirty-one page civil suit against the Association and Trust…

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Insurance Fundamentals

It’s been a tough few years for health insurance professionals. But, it’s been toughest on families and small businesses. Regulatory and political confusion grows with each passing day. Another mother with a sick child wilts from the double-talk, back-tracking, and double-cross – and that’s just her health plan. She must still suffer the hollow promise…

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DOL Sues Spokane-Based Association Health Plan

On February 24th, the United States Department of Labor (DOL) sued Associated Industries of the Inland Northwest, Associated Employers Health and Welfare Trust, Associated Industries Management Service, Inc. (AIMS), and several individuals responsible for managing the Trust. DOL alleges “fiduciary breaches, prohibited transactions, and knowing participation in same.” The thirty-one page civil suit against the…

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Is free HR software an illegal inducement to buy insurance?

In December, the Washington State Insurance Commissioner ordered Zenefits to charge a market price for “use of its online, cloud-based, software platform that integrates the administration of human resources, payroll, and employee benefits.”  The Commissioner found that “free access to valuable software functions” constituted an illegal inducement to purchase insurance. Competing insurance brokers complained to the Commissioner that Zenefits’…

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December Double Bonus – Health Plan Marketing Mistakes

Regulators never take a holiday, especially in December when giving seems so right. Washington D.C. and Washington State have given new gifts to unwrap throughout the coming year. On December 16th, the Center for Consumer Information and Insurance Oversight (CCIIO), a subsidiary of the conglomerate Centers for Medicare & Medicaid Services of the United Stated…

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Philadelphia Catholics Agree to $650,000 HIPAA Fine

Business Associates who fail to conduct health information risk assessments and adopt required security policies and procedures face a growing threat of discovery and fines. Catholic Health Care Services of the Archdiocese of Philadelphia (CHCS) got more than a prayerful penance after violating HIPAA rules. The $650,000 fine imposed by HHS arose from the reported theft of a CHCS issued, unencrypted…

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Eating Soup with a Fork – TPA Licensing not the Right Tool

This past legislative session, the Washington House of Representatives considered regulation of third party administrators (TPAs) as recommended by the state Insurance Commissioner. After some confusion over what the Commissioner intended and what should be amended, the bill died a quiet death in committee. Policymakers quickly discovered that TPA regulation had become a surrogate for indirectly addressing…

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Boring but Important

Finding, reading, and understanding the thousands of regulations that apply to health plans can drive a sane person to drink Flint, Michigan water. But not me. My sanity has already been questioned given that I intentionally spent a lot of money to go to school so I could learn the discipline of memorizing convoluted regulations…

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President Proposes Elimination of MEWA Common Bond Requirement

President Obama surprised many folks today by proposing to allow small employers and the self-employed to form multiple employer plans without regard to the “common bond” standard required by the Department of Labor. The elimination of the “common bond” requirement would eliminate one of the highest hurdles to the creation of group benefit programs for…

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Another AHP Challenge to Insurance Commissioner

And now for something completely different. Since 2004, Washington State has required all self-funded Multiple Employer Welfare Arrangements (MEWAs) to obtain a certificate of authority to conduct business in the state. The statute imposes strict standards of eligibility and detours from federal ERISA interpretations of “bona fide association” with its own unique statutory definition: “Bona…

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Insurance Commissioner Proposes TPA Regulation

The Washington Insurance Commissioner has requested legislation for registration of third party administrators to protect consumers. Third party administrators (TPAs) come in all shapes and sizes and just as many flavors. Insurers typically provide most services for administration of its own health plans. Many Insurers also sell administrative services to self-funded plans which would make…

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Insurance Commissioner Explains AHP Settlement

The ranking member of the Washington State House Health Care Committee, Representative Joe Schmick, read my recent association health plan (AHP) post and shared the Insurance Commissioner’s letter explaining the agency’s recent actions. In his letter, the Commissioner addresses the administrative law judge’s decision disapproving the agency’s rating requirements. Disagreement over bona fide status was…

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Insurance Commissioner Settlement with AHPs

The Washington Insurance Commissioner’s Office (OIC) responded to my public disclosure request and released the settlement agreement signed by the Business Health Trusts (BHT) and Commissioner Kreidler on September 28, 2015. The Agreement includes two exhibits. Exhibit A which alphabetically lists employers in each of the 13 different associations comprising BHT and Exhibit B which…

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The Confusing Morass of Association Health Plan Regulation

Many folks have asked for explanations and guidance on the creation or continuation of association health plans (AHPs) in Washington State. The tortured history of AHP regulation in this state defies any imposition of rational thought, let alone legal explanation. Here’s one example that you can mull over while you’re parked on the interstate. Just…

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Update: Association Health Plans Withdraw Complaints

Following a still unreleased settlement between the Business Health Trusts (BHT) and the Washington Insurance Commissioner (OIC), BHT attorneys withdrew the remaining administrative and federal court actions challenging the OIC denial of BHT’s “bona fide” association status under ERISA. The withdraw of the administrative appeals can be found here and withdraw of the Oregon federal court…

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Federal Case Settled by BHT and OIC

In my last update on the association health plan litigation, I wondered how the Seattle federal judge might view the Business Health Trusts argument that the trusts are “bona fide” large employer association plans under ERISA. We’ll never know. Yesterday, the Seattle federal judge signed a Stipulated Order of Dismissal ending the case. The order is short on…

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End of the Road for Deconstructed AHPs?

If you thought buying and selling association health plans constituted risky business, consider how risky Moda viewed the business. Last October, Moda Health told the attorney for various associations insured by Moda that the insurer would continue to provide large group coverage to the associations only if the Department of Labor or a court found…

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What the Washington Legislature Did This Year

After three special sessions, the Washington State Legislature has concluded its work. Below you will find a table of bills (literally and figuratively) adopted by the Legislature with a focus on legislation affecting health plans and health carriers. Enjoy contemplating the new policies and standards because you won’t have long to savor them before implementing rules appear. 2015…

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Judge Rules Against Commissioner in AHP Rate Challenge

On July 1st, administrative law Judge Finkle granted summary judgment to Cambia, the Master Builders Association (MBA Trust), Building Industry Association of Washington (BIAW Trust), and Northwest Marine Trade Association (NMTA Trust). The judge’s ruling permits an association qualifying as a bona fide employer health plan under ERISA to calculate and charge separate health plan rates…

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AHP Litigation Box Scores

Legal Actions Challenging Insurance Commissioner Disapproval of AHP Plans (06/17/2015) Plaintiff / Case Number Attorney for Plaintiff AHP Insurance Company Status Business Health Trust (AHPs) v. Mike Kreidler, Insurance Commissioner Seattle Federal Court Judge Lasnik Case #2:14-CV-01918 Richard Birmingham,Christine Hawkins, Davis Wright Tremaine Premera Plaintiff reply to defendant in support of plaintiff motion for summary…

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Insurance Commissioner Responds to BHT

The Washington Insurance Commissioner (OIC) stepped up its game and offered its clearest explanation yet as to why the OIC rejected the Seattle Chamber of Commerce association health plan reorganization. On June 1st, the OIC responded to the Business Health Trusts (BHT) motion for summary judgment in Seattle federal court, concluding: “Plaintiffs lack standing, and…

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AHPs go to Spokane to sue Insurance Commissioner

In 2007, a Spokane superior court judge ruled that the Insurance Commissioner (OIC) could not ignore state law exempting association health plans (AHPs) from the Washington State community rating law. Using HIPAA as an excuse, the OIC had argued that associations could not charge employer members of the AHP different rates. Instead, the Commissioner argued that an association had to…

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AHPs ask federal court for summary judgment

Attorneys for the Business Health Trust (BHT) have filed a motion for summary judgment against the Washington Insurance Commissioner (OIC). The Seattle federal court case has plodded on since early January when the court denied the BHT request for a temporary restraining order against the OIC. These and related federal proceedings have been covered here and here. Although…

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Cambia Argues for MBA, BIAW, and NWMTA

Yikes! The number of lawyers and powerful law firms arguing for association health plan clients continue to swamp the Insurance Commissioner’s Office (OIC). Legal pleadings related to association health plans pour into Olympia at a fairly quick pace now. On May 6th, Stoel Rives, Perkins Coie, and Kutscher, Hereford, etc. filed a summary judgment motion on behalf of…

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Premera Joins the Fray

Last week when I wrote about associations and insurers challenging the Washington Insurance Commissioner’s (OIC) disapproval of rates for bona fide association plans, Premera was conspicuously absent. That left the Washington Counties Insurance Fund (WCIF) at risk of not even getting a hearing. Why? Because Premera had not challenged the WCIF rate disapproval. The administrative law judge…

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Association Health Plans Challenge Insurance Commissioner

“Delay is the deadliest form of denial.“ Cyril Northcote Parkinson famously developed a mathematical formula demonstrating little or no relationship between a regulatory task and the size of the staff assigned to accomplish the task. “Parkinson’s Law” has morphed into the well known adage that “work expands to fill the time available for its completion.” Parkinson’s observation about bureaucratic…

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Association Health Plans – Some Clarity at Last

After years of confusion and drift, the Insurance Commissioner’s Office (OIC) has begun a more transparent process of sorting out the winners and losers in the Washington association health plan market. Change has come quickly in the past week beginning March 5th with the Association of Washington Business withdraw of their demand for hearing challenging the…

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Agency Judge Denies BHT Request to Stop Commissioner Disapproval of Health Plans

On February 13, Judge George Finkle (Ret.), presiding officer in the Business Health Trust administrative action against the Insurance Commissioner ruled: “BHT is not entitled to a hearing or to an automatic stay under RCW 48.04.020(1). I do not grant a discretionary stay under RCW 48.04.020(2). This Order is without prejudice to BHT’s renewed Demand…

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Commissioner responds to court challenge by BHT

On February 2nd, the Washington Insurance Commissioner’s office (OIC) responded to the Business Health Trust (BHT) request for an injunction against the OIC.  BHT and the other association plans represented are trying to prevent the OIC from disapproving large group health plans for the associations. The response consists of the agency’s arguments and supporting declarations from…

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Dental Plans…briefly

Because sometimes the obvious is not – a dental or vision plan is not a “health plan” as defined under federal health care reform or under Washington insurance law. These plans are often referenced in rule as “excepted benefits,” e.g., excepted from the definition of “health plan.” Consequently, those who fear the regulatory “reaper” should relax and stop…

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AWB Challenges Insurance Commissioner

Joining the litigation fest, on January 13th, the Association of Washington Business (AWB) demanded a hearing to prevent the Washington Insurance Commissioner (OIC) from disapproving health plans that its insurer Premera Blue Cross had not yet even filed for review. Essentially, AWB demands a hearing just in case the OIC disapproves the AWB HealthChoice plans:…

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Association Health Plans – Rest in Peace?

On Friday afternoon (1/23/2015), federal district court Judge Robert Lasnik denied the Business Health Trust and thirteen other participating trusts a temporary restraining order (TRO) against Insurance Commissioner Mike Kreidler. The Trusts, insured by Premera, sought the TRO to prevent the Commissioner from issuing a letter like the one issued to the Moda insured trusts [see previous article].  The…

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Alphabet Soup: OIC v BHT re AHP or ACA under ERISA

Here is the first in a series of updates on the litigation between the “Business Health Trust“ (BHT) and the Washington Insurance Commissioner (OIC). You can track progress on both the administrative hearing within the OIC and the federal court litigation here and here. On January 9th, Assistant Attorney General Mart U. Deleon filed an answer…

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Small Employers Who Play With Fire…

I wince whenever I hear the phrase “small business.” I’m tired of the hackneyed and vapid references to small employers used to extoll half-baked policies or self-serving goals. “We need to focus on small businesses who are our future and the engine of our democracy.”  Rarely does the phrase get used by folks actually concerned with the…

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Premera Insured Association Plans Sue Washington Insurance Commissioner

Well, things just got more interesting in the Wally World of health care reform. Unlike Moda whose association health plans were disapproved by the Washington Insurance Commissioner (OIC) last month, a group of associations insured through Premera filed suit against Commissioner Kreidler before he could disapprove their large group plans. I reviewed these Premera filings here in September.…

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Moda “Bona Fide” Association Plan Filing Details

Ahhh…the marketplace…pushing, shoving, spinning, clarifying, puffery and many other special words come tumbling out with bad news. For those who want to paint a happy face on the recent Washington Insurance Commissioner (OIC) disapproval of large group health plans for several associations/trusts insured through Moda, let’s sort through the options in the “No Spin Zone.” Moda…

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Association Plans – Year End Wrap-Up

For most of 2014, insurance producers and employers puzzled over the inability of the Office of the Insurance Commissioner (OIC) to make decisions about the fate of Washington’s association health plans. Most associations claimed status as “bona-fide” employer associations to obtain treatment as large employer plans under ERISA. That status allows the association to offer…

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Bona Fide Associations – Alright Already – Here are the Filings

In my last article, (Part Three – Bona Fide Associations…still waiting), I observed that the state regulatory filings for health plans issued to association trusts to be treated as large group plans were not available on the Washington Office of the Insurance Commissioner (OIC) website. Nothing has changed since July. Most industry insiders predict that…

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Which Association Health Plans are Realer?

I keep odd and varied company and sometimes need the Urban dictionary to answer questions like: “what’s realer –  the guvmint tellin’ you what’s up or your own damn lyin’ eyes?” I’ll go with my lying eyes. So I asked to see the bona fide association documents for myself. Insurance producers and employers have asked in…

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Let’s Be Careful Out There

As someone who has long opposed the Washington Insurance Commissioner’s regulatory approach to killing association health plans, I understand the anger and frustration of small employers and associations forced to abandon perfectly legal plans for the health care reform tango. BUT, it’s important to remember there’s a huge difference between opposing bad law and policy…

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Association Health Plans – the Wild, Wild West

The Insurance Commissioner’s newly revised rules governing association health plans once again alter the landscape for small employers. Hopefully, the rules last long enough for small employers to make a firm decision when renewing coverage in 2014. Health plan markets have returned to the Wild, Wild West and the regulatory sheriff hasn’t stepped into the…

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How to kill an AHP – drive them mad

After a year of PowerPoint presentations and various emergency rules explaining when and how a small employer could keep existing coverage (they can’t), the Insurance Commissioner (OIC) began adopting rules explaining how insurers should develop and file association health plan rates. It’s all very exciting. Small employers still don’t know how things are going to…

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Washington the Maverick

Washingtonians can feel all “mavericky” compared to other states where Insurance Commissioners have honored the President’s attempt to meet his original commitment to policyholders (remember “grandfathered plans?”). [“Mavericky” – “An adjective used to describe an action that may not make any sense, but is definitely different.” (from the Urban Dictionary)]. The California Insurance Commissioner’s positive…

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Canceled Plans…Some Contrast

Washington Insurance Commissioner Kreidler argues that the Washington Exchange is working and that allowing individuals to renew the poor coverage they now have would hurt reform. O.K., but what about all the small group coverage renewing? There’s no exchange for that unless you live in Southwest Washington. Here’s a different approach to President Obama’s extension…

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The Health Plan Emergency Has Ended…Right?

The United States Department of Health and Human Services (HHS) has issued guidance to the state Insurance Commissioners recommending individuals and small groups be allowed to continue existing coverage for an additional year. Thankfully, the “emergency” that “forced” the Washington Insurance Commissioner to cripple small group health plan renewals appears to be over. Here was the…

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President Obama Doesn’t Rule Washington

For those asking so optimistically what happens now that President Obama will allow individuals and small groups to “keep their coverage” for another year, I attach the CMS letter to the state Insurance Commissioners recommending that state insurance regulators allow individuals and small businesses to extend current coverage for another year. But wait… Here is…

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The Washington Health Benefit Exchange – res ipsa loquitur

On August 1, 2013, the Washington Office of Insurance Commissioner (OIC) announced that a total of 31 individual health plans had been approved for sale on the Washington Health Benefit Exchange (HBE) for 2014. Of the nine insurance companies that submitted various plans, four companies obtained approval. None of the insurance companies new to Washington…

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Supreme Court declares illegal inducements a customary practice

The Washington State Supreme Court started the month of August with an opinion finding Chicago Title Insurance Company (CTIC) liable for regulatory violations of its “agent” – Land Title Company (LT).  Chicago Title appealed a fine imposed by the Washington Insurance Commissioner (OIC) for the illegal inducements made by LT to various people in the…

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Stamp of Approval or Kiss of Death?

Last year, the Washington Insurance Commissioner’s Office (OIC) took on the Department of Labor’s (DOL) role in reviewing multiple employer welfare arrangements (MEWA) to determine whether the arrangement constituted a single plan for ERISA purposes. Essentially, the OIC created a “pre-certification” process to review Washington’s many association plans and to determine which ones were “bona…

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Washington Adopts Emergency Association Plan Rules

On Friday, June 28th, the Washington Insurance Commissioner (OIC) adopted emergency rules governing association health plans. The rules became effective upon filing Friday (here are the rules). The rules require carriers to maintain proof that a small group/association has grandfathered status; require carriers to replace plans that do not meet reform standards within particular time…

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Tougher Privacy Standards for Exchanges

TEASER: “We considered but declined to use the definitions for these terms provided under the HIPAA regulations because the protected health information (PHI) that triggers the HIPAA requirements is considered a subset of PII [Personally Identifiable Information], and we believe that the HIPAA definitions would not provide broad enough protections to satisfy the requirements under…

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Association Plan Redux – Bona Fide Grandfathers

Six months before the health reform cuckoo clock strikes, the Washington Office of the Insurance Commissioner (OIC) has changed agency policy which required associations to prove its ERISA “bona fide” status and which rejected grandfather status for employers insured through associations. I say to those bitter folks clinging to their guns and their religion, better…

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And another one…

What a difference a day makes. I should have waited until June 1st to write my laundry list of May regulatory actions. Here are the final SHOP regulations published today, Friday, May 31st. “In the Exchange Establishment Rule, we also set forth the minimum functions of a SHOP, including that the SHOP must allow employers…

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Commissioner issues new draft “not a rule” for association health plans

On Thursday February 28, while the state Senate was hearing legislation to require the Insurance Commissioner (OIC) to defer to the federal government on matters relating to treatment of associations as large group plans under ERISA, the Commissioner was unveiling his new rate and form filing instructions. Parenthetically, these instructions are not rules subject to…

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Recreational Fiscal Note Analysis…AHP leads to decline of Western Civilization

Whatever your political persuasion on the issue of health care reform (Obama Care…that !#@ law…or…change at last, change at last), nothing seems to breed suspicion and controversy like association health plans which persist in providing insurance plans tailored to membership needs. Senate Bill 5605 would bar the Washington Insurance Commissioner from ruling on the issue…

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Final HIPAA Rules Require Notice Changes

On January 17, 2013, the Department of Health and Human Services (HHS) issued its final rules governing the Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification. The regulations significantly change some provisions of the existing rules. “Covered Entities”  and “Business Associates” must comply with these new provisions by September 2013. The…

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Comment: NAIC Model Small Group “Bona Fide Associations”

The NAIC has circulated a revised Small Group Market Health Insurance Coverage Model Act with provisions narrowly defining “bona fide associations.” The NAIC should avoid additional, unnecessary deviation from federal standards. The proposed definition serves no useful purpose other than to insult those who did not go to college. The proposed NAIC draft defines “bona…

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The NAIC considers narrow definition of “bona fide” association

If you read the last article on MEWAs here, you noticed that different laws define what it means to be a “bona fide association” for health insurance purposes. I won’t repeat those observations. However, you might want to watch the National Association of Insurance Commissioners (NAIC) draft model law that proposes to define “bona fide…

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HHS Rules Don’t Preempt Association Plan Community Rate Exemption

On September 6, the Federal Register published amendments by the U.S. Department of Health and Human Services (HHS) to its May 2011 regulations that require disclosure and state review of “unreasonable premium increases” by health insurers. The amendments expand the definitions of the individual and small group health plan markets to explicitly include plans purchased…

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HHS Seeking Comment on Regulation of Association Health Plan Rates

Washington State has regulated association health plans as large group plans for nearly 15 years. Washington State carved out a unique position in the health insurance market for trade associations back in 1995. An example of this carve-out originating when the state’s 1993 health care reform act was dismantled provides: Employers purchasing health plans provided…

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Health Reform Leftovers – Washington’s Anti-trust Law

The United States Department of Justice announcement of a civil antitrust lawsuit against Blue Cross Blue Shield of Michigan rings another ancient health care reform bell in Washington, the state.  In 1993, as part of its comprehensive health care reform, Washington adopted a series of laws intended to offset the growing market power of insurers.…

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Insurance Commissioner sends the Association Health Plan Market into shock

Shortly after the President signed health care reform legislation, many of us spent long hours parsing the thick bill to discern a place in a reformed market for association health plans. As I noted in prior articles (e.g., what-is-a-mewa-and-will-they-be-sent-to-the-health-care-reformatory ), for over fifteen years, the Washington small group market has been dominated by member governed…

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HIPAA Privacy Rules Again… and a warning to Business Associates

The US Department of Health and Human Services (HHS) has just proposed new regulations designed to fulfill the amendments made to HIPAA last year when the economic stimulus act (ARRA) was passed by Congress. The separate Health Information for Economic and Clinical Health (HITECH) Act was grafted onto ARRA. Recall that among the HIPAA amendments…

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What is a MEWA and will they be sent to the health care reformatory?

Kittens say “mew”; insurance brokers say “mewa” – not “myū-ah”, but “mē – wăh.” A MEWA may be a “cool cat” or a predator depending on where you live. In Washington, many employers hang out with the safe version. They get their health insurance through MEWAs. MEWA is an acronym for “Multiple Employer Welfare Arrangement”…

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Lost Ratios

I am just as good a basketball player as President Barack Obama. I make that judgment the same way we measure the fairness of health insurance prices. I judge my skill in relation to myself – mid-fifties, overweight, lost a step, and down from six foot to five-eleven. Regulators judge insurance premiums in relation to…

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