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Compliance Corner

State Updates

Annual Medical Ethics and Diversity Filing Requirement Reminder

June 08, 2021

On May 25, 2021, the Department of Insurance issued Bulletin No. 8-2021 regarding the Medical Ethics and Diversity Act (“Act 462”). The communication reminds insurers, HMOs and employer health plans of the annual filing obligations under Act 462.

Act 462 grants medical practitioners, healthcare institutions and healthcare payers the right to conscientiously object to any healthcare service based on religious, moral or ethical grounds.

A payer intending to use the conscience objection to refuse payment must annually collect a list of billing codes for the healthcare items, services and procedures that will not be paid for reasons of conscience. Payers are encouraged to develop an annual form with the specific required information for this purpose. The list must be filed with the Commissioner by December 31 of each year, provided to plan beneficiaries and published on the healthcare payer’s website.

Alternatively, the payer may designate in writing that it will not exercise its rights under Act 462 for the year.

Employers that sponsor health plans should be aware of this bulletin.

Bulletin No. 8-2021 »

Guidance Clarifies Calculation of Employees for Small Group Rating Purposes

January 20, 2021

On January 8, 2021, the Insurance Department issued Bulletin 2-2021 to provide guidance to insurers regarding the calculation of employees for small group health coverage rating purposes. The bulletin responded to carrier inquiries regarding: 1) whether the term “employee” is governed by federal or state law and 2) the applicable time period an employer should use to determine the employee count.

Federal law, including the ACA, generally defines a small employer in connection with a group health plan as an employer who employed an average of at least one but not more than 50 employees on business days during the preceding calendar year. However, a state may elect to define a small employer as one who employed up to 100 employees on average in the prior year. Additionally, the federal law definition includes any employees (e.g., full-time and part-time) in the count. Any contrary definition under state law is preempted (i.e., superseded) by the federal definition.

By contrast, the state’s group rating law defines a small employer as a business person or entity that, on at least 50% of its working days during the preceding year, employed no fewer than 2 or more than 25 eligible employees, the majority of whom were employed in the state.

The Insurance Department clarifies that the federal definition of employee should be used for group rating purposes. Accordingly, the conflicting state law would be preempted in this context. The bulletin notes that the state’s interpretation is also consistent with the analysis under Mississippi Insurance Department Bulletin 2016-9.

Employers that sponsor small group health plans should be aware of this bulletin.

Bulletin 2-2021 »

Coronavirus-Related Bulletins Issued

May 27, 2020

On May 11, 2020, the Commissioner Mcclain released a series of coronavirus (COVID-19) bulletins. These included Bulletins 20-2020, 21-2020, 23-2020, and 24-2020.

As background, on March 11, 2020, a public health emergency was declared in the state due to the COVID-19 crisis. Following the declaration, the commissioner issued numerous related bulletins to insurers, health care providers, pharmacy managers and other interested parties in the state. The May 11, 2020, bulletins include rescissions of certain prior orders, as well as new emergency relief measures.

Bulletin 20-2020 rescinds certain prior COVID-19-related bulletins. Bulletin 21-2020 announces a 45-day cancellation moratorium on personal lines, life and health policies for certain state residents affected by the COVID-19 emergency. This premium nonpayment relief is available to policyholders who, since March 11, 2020, have been diagnosed with or positively tested for COVID-19 or have been terminated, laid off or, if self-employed, experienced a cessation of work due to the COVID-19 emergency.

In a further effort to assist residents affected by the outbreak and remove impediments to their receipt of health care, Bulletin 23-2020 was issued to insurers, health maintenance organizations and other interested parties. This bulletin suspends payment audits of hospitals and health care providers for the 45-day period that began on May 5, 2020. However, such audits can be performed retroactively. The bulletin also directs health insurers to toll the time limit on overpayment recovery for the 45-day period. Finally, the bulletin encourages provides to maximize the use of telemedicine services in accordance with state laws to mitigate the spread of COVID-19 in the state.

Similarly, Bulletin No. 24-2020 recognizes that pharmacists are also an integral part of the COVID-19 health response. Accordingly, this bulletin suspends random audits of pharmacies (except where fraud is suspected) for the above referenced 45-day period. Additionally, this directive reminds pharmacy benefit managers of the ban on price gouging and their responsibility to monitor drug pricing to ensure consumers have access to products during the emergency.

Although the bulletins are primarily directed at insurers and health care providers, employers may want be aware of these developments.

Bulletin 20-2020 »
Bulletin 21-2020 »
Bulletin 23-2020 »
Bulletin 24-2020 »

Insurance Regulatory Suspension

April 14, 2020

On April 7, 2020, the Department of Insurance made an announcement in relation to the state’s response to the coronavirus (COVID-19) pandemic. The statement focuses upon the suspension of regulatory statutes, agency orders and rules determined to impede the state’s emergency efforts.

As background, on March 11, 2020, Gov. Hutchinson declared a public health emergency due to the COVID-19 crisis. On March 17, 2020, in Executive Order 20-06, the governor ordered state agencies to identify on their websites any provisions of regulatory statutes, agency orders or rules that prevented or delayed their ability to assist residents during the COVID-19 crisis.

As a result, the insurance commissioner identified certain insurance provisions that hindered COVID-19 mitigation efforts including those related to the Prior Authorization Transparency Act (Ark. Code Ann. § 23-99-1101 et seq.) Accordingly, for cases involving COVID-19 patients, the prior authorization requirements for non-urgent, urgent and emergency services found in Ark. Code Ann. §§ 1105, 1106, and 1107, are suspended. Additionally, for COVID-19 cases, § 8 of AID Rule 115 regarding utilization reviews and rescissions of prior authorizations is similarly suspended. The suspensions are currently in effect for 30 days from the issuance of Executive Order 20-06 (therefore beginning on March 17, 2020, and expiring on April 17, 2020).

Although the memo is directed at insurers, employers may want be aware of these developments.

Public Health Emergency Regulatory Suspensions Pursuant to Executive Order 20-06 »

Telemedicine Reimbursement

March 31, 2020

On March 27, 2020, the Department of Insurance issued Bulletin No. 13-2020, regarding reimbursement for telemedicine. The bulletin was directed at all licensed insurers, health maintenance organizations, and other interested parties in the state.

As a result of the coronavirus (COVID-19) outbreak, the governor had declared a public health emergency on March 11, 2020. Following the declaration, in Executive Order 20-05, the governor encouraged treatment and communication by technology. Specifically, for the duration of the emergency, the governor called for the leveraging of telehealth to mitigate the spread of COVID-19, and suspended existing requirements for in-person physician encounters with patients to establish a professional relationship. The prior order also suspended certain specialized licensing requirements to enable mental health professionals to provide counseling to state residents through available technology.

Bulletin 13-2020 serves to remind carriers offering health insurance plans, including short-term limited-duration insurance plans regulated by the Department, that they must comply with the reimbursement requirements for health care services provided through telemedicine found in Ark. Code Ann. § 23-79-1602(c) and (d). These sections include provisions requiring reimbursement for health care services through telemedicine on the same basis as the health benefit plan provides coverage for the same health care services provided by the physician in person.

The memo is directed at insurers, but employers should be aware of this communication.

Bulletin No. 13-2020 »

Self-Funded MEWA Rules

February 04, 2020

Effective in December 2019, Insurance Commissioner Kerr issued Rule 119 (the “Rule”) regulating multiple employer trusts and MEWAs that are not fully insured. Amongst other items, the Rule provides licensing standards and financial solvency requirements for self-insured MEWAs.

As background, Arkansas Insurance Code 23-92-101(c)(3), which pertains to self-funded MEWAs, has long permitted the Insurance Commissioner to issue a rule to establish requirements for self-funded MEWAs. Under this authority, the Rule provides clear instructions to interested employers and brokers and to protect the public and medical providers.

The Rule’s requirements are similar to those of neighboring states, specifically Texas and Oklahoma. Covered topics include the benefits offered, financial requirements, fees, insolvency procedures, examinations, filing of forms and rates, written disclosures and other consumer protections, reporting requirements, and excess or stop loss insurance. The Rule also provides the criteria and application for obtaining a certificate of authority from the State Insurance Department to conduct business in Arkansas.

Accordingly, interested employers and brokers should be aware of these standards established for the licensing, formation, and regulation of MEWAs that are not fully insured. Employers seeking to band together to create health benefit plans for their members may benefit from the new guidelines. Further information is available through the Arkansas Insurance Department.

Rule 119 »

New Bulletin on Identification of Plan’s Funding Status on Insurance ID Cards

September 04, 2019

On July 2, 2019, the Insurance Department published Bulletin No. 6-2019, which is titled “Health Plan and Prescription Drug Coverage Identification Cards.” The bulletin is directed to health benefit plan issuers in the fully insured and self-insured health benefits markets, including TPAs and pharmacy benefits managers servicing such plans for enrollees in Arkansas. Arkansas recently enacted a law (effective April 4, 2019) that requires disclosure by health care payors of whether its plans are fully or self-insured on health plan identification (ID) cards. As a result, plans in both the fully insured and self-insured markets are to provide their insureds or enrollees with plan benefit ID cards that state whether the plan is insured (by an insurer or HMO) or whether it is a self-insured employer plan. According to the bulletin, the language needs to be simple, clear, and aimed toward consumers and health care payors who are not versed in insurance industry parlance or third-party network administration structures. The bulletin includes some example language that could be used.

The bulletin applies to both fully insured plans and self-insured plans that operate in Arkansas. Employers with fully insured Arkansas plans should work with their carriers in correcting ID cards. Self-insured employers in Arkansas should work with their TPAs in facilitating new ID cards with appropriate information on the plan’s self-insured status.

Bulletin No. 6-2019 »

Rules on Mammography Coverage Amended

May 02, 2017

On March 27, 2017, Gov. Hutchinson signed H.B. 2022 into law, creating Act 708. This law amends the Arkansas Insurance code concerning the coverage of mammograms for female plan participants. Beginning July 20, 2017, insurance carriers must offer to provide coverage for mammography screening for breast cancer. This includes screening mammography (including digital breast tomosynthesis) and breast ultrasounds for purposes of early detection of breast cancer. If plans choose to provide this coverage, then the plan must allow one baseline mammogram for participants age 35-40, one mammogram every other year for participants age 40-49, annual mammograms for participants age 50 and older, and mammograms at any age when recommended by doctors for patients with a family history of breast cancer.

Plans must also provide coverage for comprehensive screenings of the breasts if mammography indicates heterogeneous or extremely dense breast tissue and participants’ doctors determine comprehensive ultrasound screenings are medically necessary. The law also prohibits insurers from charging copayments or deductibles to screening mammography. While insurers may apply copayments to breast ultrasounds, they may not apply deductibles to them.

This law ultimately applies to insurers. However, employers should familiarize themselves with this law so that they remain up to date as to how mammography benefits will be covered.

Act 708 »

Health Insurance Coverage for Medically Necessary Foods

May 02, 2017

On April 7, 2017, Gov. Hutchinson signed H.B. 1900 into law, creating Act 1096. This law amends the Arkansas Insurance code to require that plans provide coverage for the treatment of certain medical disorders that require specialized formulas or medical foods. This coverage must be provided if the medical foods or specialized nutrients or formula are prescribed as medically necessary by a licensed healthcare provider, as long as those products or formula are administered under the direction of a licensed healthcare practitioner. This Act becomes effective Jan. 1, 2018.

This law ultimately applies to insurers. However, employers should familiarize themselves with this law so that they remain up to date as to how certain medical food benefits will be covered.

Act 1096 »

Injected or Intravenously Administered Cancer Treatment Medication

April 18, 2017

On March 21, 2017, Gov. Hutchinson signed HB 1592 into law, creating Act 543. This legislation prohibits plans that provide coverage for injected or intravenously administered cancer treatment medications from providing less favorable coverage for prescribed, orally administered cancer treatment medications. Further, plans may not reclassify cancer treatment medications or increase copayments, deductibles or coinsurance for the medications that are injected or intravenously administered unless the increase is applied to all other medical and pharmaceutical benefits or the increase is consistent with the carrier’s annual increases in the cost of health care. Any reclassification must also be consistent with this legislation. This act is effective on Jan. 1, 2018.

Act 543 »


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