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May 24, 2023
Health Policy Insights

When health policy issues arise – and affect self-funded employers – we will share insights into each issue to better educate employers. These emails will be sent occasionally throughout the year, but primarily during peak “legislative season.” 

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At the State Level


Senator Felzkowski Introduces Transparency Legislation

Senator Mary Felzkowski (R-Irma) has introduced the Know Your Healthcare Costs Act to require hospitals to disclose their prices via publicly accessible, searchable, and free-to-access webpages. If the proposal passes, hospitals that fail to comply will face stiff penalties.

The requirements for hospitals are nearly identical to requirements that already exist in regulation at the federal level. If passed, the legislation would codify the requirements into state statute, meaning they would continue to exist at the state level even if federal regulators were to weaken or eliminate federal requirements.

The legislation would also allow the state Department of Health Services to conduct reviews and audits of the information posted by hospitals and investigate complaints. If the agency finds a hospital to be non-compliant, the bill defines a state-level remedy that starts with a corrective action plan and ends with penalties that are based on the size of the hospital, similar to federal requirements. To date, only four hospitals have been penalized at the federal level, but hundreds more have received warning letters and corrective action plans for non-compliance even though the regulations went into effect over two years ago.

When asked why she felt a state bill was necessary, Senator Felzkowski said she did not want to wait for Washington to get something so important for Wisconsin consumers done. She was joined by Senator Julian Bradly and Representatives Rob Brooks and Donna Rozar in introducing the legislation. Other lawmakers had until May 17 to sign on, and soon the bill will be assigned a number and added to our tracking list below.

The Alliance, which has long fought for increased transparency in healthcare, supports the legislation, but it will be an uphill battle to see it passed into law. If you are interested in helping us push this bill past the finish line, you may wish to contact your legislators via email or by telephone to express support for the Know Your Healthcare Costs Act. You can use this link and type your address into the upper right-hand corner to find out who represents you in Madison and how to reach them. Any questions should be directed to Melissa Duffy who handles Government Relations and Advocacy for The Alliance.

Assembly Approves Workforce Bills

The Wisconsin Assembly has approved four bills that are intended to reform Wisconsin’s unemployment insurance law and improve Wisconsin’s workforce. Assembly Bills 146, 147, 149, and 150 will now be sent to the Senate for consideration. None of these bills directly impact health benefits, but we thought our readers may be interested, nonetheless.


At the Federal Level


Temporary Stay Issued in Court Ruling That Puts No Cost Preventive Health Coverage in Jeopardy

Certain health plan requirements to cover preventive care services at no cost to enrollees are in jeopardy as a result of the Texas court ruling in Braidwood Management, Inc. v. Becerra. However, a temporary stay granted by an appeals court creates even more uncertainty over the enforceability of certainty preventive care requirements going forward.

For background, the ACA required employer plans to cover the following preventive care services without cost sharing:

  • Services receiving an “A” or “B” rating by the US Preventive Services Task Force (USPSTF)
  • Immunizations recommended by the CDC’s Advisory Committee on Immunization Practices (ACIP)
  • Services and screenings for women and children provided in guidelines issued by the Health Resources and Services Administration (HRSA)

The Braidwood ruling was specific only to the USPSTF, finding that its ongoing authority to define preventive care was improperly granted to a task force that is not a federal agency with properly appointed members. However, USPSTF preventive care requirements that were in place before the ACA was signed into law on March 23, 2010, or those determined by ACIP and HRSA, will continue to be in place even if the ruling ultimately wins in court.

The federal government responded to the ruling by filing an appeal and asking for a stay - a pause on the decision pending further court action. The stay that was granted is only a temporary one, giving the court time to consider the merits of issuing a longer term stay or removing it altogether and allowing the lower court’s decision to take effect. Understandably, employers cannot be certain if they should take advantage of the additional flexibility granted by the initial decision to design their own preventive care benefits (which would require a 60-day notice if implemented mid-plan year), and the situation may remain legally fluid for some time.

Federal agencies have also issued Frequently Asked Questions related to preventive care coverage requirements that can be found here. It clarifies that the ruling does not apply to any recommendations made by ACIP or HRSA, and that federal agencies will issue additional guidance to clarify how plans should cover preventive services that were modified by the USPSTF after March 23, 2010. As you can see from this tracker created by the Kaiser Family Foundation, several preventive care recommendations were modified by the USPSTF on or after March 23, 2010.

The FAQs also clarify the ruling’s impact on preventive care services provided pre-deductible for the purposes of HSA rules. The agencies state that USPSTF preventive care recommendations in place today will continue to be considered preventive care under HSA-eligible High Deductible Health Plans “until further guidance is issued.”

House Committees Hold Hearings on Health Costs

The U.S. House Committee on Education and Workforce Subcommittee on Health, Employment, Labor and Pensions held a hearing on April 26th called “Reducing Health Care Costs for Working Americans and their Families.” A video replay can be viewed here, starting at the 16:30 mark. That same day, the House Energy and Commerce Health Subcommittee held a hearing titled “Lowering Unaffordable Costs: Legislative Solutions to Increase Transparency and Competition in Health Care.” That hearing can be viewed here and begins at the 6:33 mark.

CMS Updates Hospital Price Transparency Enforcement

The Center for Medicaid and Medicare Services (CMS) has issued an update on its enforcement of hospital transparency requirements, saying it has taken steps to shorten the average time by which hospitals must come into compliance with the requirements after a deficiency is identified. CMS also says it has issued 730 warning notices and 269 requests for corrective action plans from hospitals and has imposed civil monetary penalties on four hospitals to date.


Health Policy Issues We Are Following

State Issues
Bill or Issue The Alliance Position Summary and Implications for Employers Status
SB 100
AB 103
Drug Assistance Programs
We have concerns Pharma-sponsored legislation that would require self-funded municipal plans and PBMs to count the value of drug coupons offered by drug manufacturers toward deductibles and maximum out-of-pockets, ensuring that anyone using drug coupons will satisfy cost-sharing requirements faster. Since this would apply to PBMs, it is uncertain as to whether the bill would be preempted by ERISA for non-municipal self-funded plans. Senate Bill has been referred to the Senate Insurance Committee, its Assembly companion has been referred to the Assembly Health Committee. No hearings have been scheduled as of the date of writing.
SB 63
Assignment of Dental Benefits
No position yet Would impact self-funded government plans but not others. Allows an individual insured under a health benefit plan that includes dental coverage to assign reimbursement for dental and related services directly to a dental provider. The plan would then have to directly pay the provider the amount of any claim under the same criteria and payment schedule under which it would have reimbursed the insured. Insurer interests are pursuing an amendment to narrow the scope of this bill to dental-only plans which we would support. Referred to Assembly Committee
on Insurance and Small Business. No hearings scheduled at the time of writing.

AB 43
SB 70
State Budget Bills

No position yet The governor’s budget includes several policy items that may be of interest to employers, including the inclusion of SB100/AB103 as described above. Many of these items are likely to be removed however, and we will communicate issues of concern as the bill moves toward final passage sometime around June of 2023. Referred to the budget-writing
Joint Committee on Finance. Votes on budget motions will begin this week.

SB 121
Advanced Mammography Mandate

We have concerns Would require health plans, including self-funded public employee plans, to cover advanced mammography at $0 for individuals with dense breast tissue or who are at higher risk for breast cancer. We are concerned mandated coverage will increase the cost of these screenings. Referred to the Senate Committee on Health, which is chaired by the bill’s author. No hearings scheduled at the time of writing.

AB 176
SB 221
Pharmacists & Contraception

No position yet Permits a pharmacist to prescribe and dispense hormonal contraceptive patches and self-administered oral hormonal contraceptives in accordance with certain rules. Introduced and referred to Health Committees. No hearings yet scheduled.
Federal Issues
Pharmacy Benefit Manager Transparency Act of 2023
We have concerns This act would prohibit “spread pricing” by PBMs and encourage full and complete disclosure of prices, fees, markups, rebates and discounts to plan sponsors, plus require PBMs to file annual reports to the FTC. Committee summary. National employer groups are working on amendments. Referred to the Senate Committee on Commerce, Science, and Transportation, Hearing held February 16, 2023
The Pharmacy Benefit Manager Reform Act
Support The bill would require PBM transparency, so employers know what a PBM pays for a drug, how a PBM is making money, and what arrangements it has with drug manufacturers and other third parties. It would also ban “spread pricing,” which allows a PBM to charge an employer or patient more than the PBM actually pays for a drug.
Additionally, the bill would require 100% pass-through of rebates, discounts, fees, and other payments from drug manufacturers.
Introduced in the Senate and headed for markup on May 2, where we’d like to see an amendment to add a requirement that PBMs act as health plan fiduciaries.
No Surprises Act Lawsuits N/A There are several lawsuits that challenge the No Surprises Act rules issued by HHS/Labor. Many of the lawsuits are challenging the rule’s direction that requires arbiters to consider the “Qualified Payment Amount” (QPA or median in-network amount) as the dominant factor when settling payment disputes. Since the No Surprises Act took effect on 1/1/22, the lawsuits are creating uncertainty for health plans. As of today, arbiters are not required to rely on the QPA as the dominant factor, which is likely to lead to more disputes and higher settlement amounts in the interim. A recent ruling in favor of challengers found that HHS may not place any emphasis on the QPA in regulations. HHS has issued updated guidance here.
Braidwood vs. Becerra N/A A lawsuit challenging no cost preventive care requirements was recently decided in favor of the plaintiffs, which could mean that certain preventive care requirements may not be enforceable by HHS/Labor. Services affected are only the services that were added or modified after the passage of the ACA. The Department of Justice has appealed the decision and a temporary stay has been issued, leaving the future uncertain for the requirements and the plans that must comply with them. A recent ruling partially vacated requirements defined by the USPSTF on or after March 23, 2010. HHS has updated guidance here.

* The information provided in this newsletter is for general informational purposes only and does not, and is not intended to, constitute legal advice.


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