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Compliance Corner

State Updates

FAQs Issued on Paid Vaccination Leave Law

March 30, 2021

On March 24, 2021, the Department of Financial Services (DFS) released guidance in the form of frequently asked questions (FAQs) regarding the state’s new paid vaccination leave law. The questions address the amount and scope of the leave entitlement, among other issues.

As background, on March 12, 2021, Gov. Cuomo signed a new law providing employees with paid leave time to receive COVID-19 vaccinations. Under the law, employees are granted up to four hours of excused leave per injection that cannot be charged against any other leave the employees have earned or accrued.

The FAQs clarify that the law does not create any retroactive benefit rights; only employees receiving vaccinations on or after March 12, 2021, are eligible for the paid leave. The leave must be paid at their regular rate of pay. Furthermore, the paid leave is only available for employees to receive the vaccine and cannot be used to assist relatives or other persons in getting the vaccine. Employers can require employees to provide notice of their need to take the leave.

Contact information is also included for employees who believe they have been denied this paid leave or retaliated against for exercising their rights under the law.

Employers should be aware of the guidance and review the complete set of FAQs. For further assistance regarding the leave administration, employers should consult with counsel.

Paid Leave for COVID Vaccinations FAQ »

Time Off for COVID-19 Vaccine

March 16, 2021

On March 12, 2021, Gov. Cuomo signed legislation that gives public and private employees time off to receive the COVID-19 vaccine. The law took effect immediately.

The law requires employers to grant employees up to four hours of excused leave per injection that cannot be charged against any other leave the employee has otherwise earned or accrued. Accordingly, the legislation enables employees, including essential workers, to take time off to get vaccinated without exhausting the leave they have already earned.

Employers should be aware of this legislation. Any question regarding implementation should be directed to employment law counsel.

Press Release »
S. 2588A »

Coverage of Infertility Treatments Regardless of Sexual Orientation or Gender Identity

March 02, 2021

On February 23, 2021, the Department of Financial Services (DFS) issued Circular Letter No. 3 to insurers authorized to write accident and health insurance in the state, amongst other entities. The purpose is to direct insurers to provide immediate coverage of diagnostic and treatment services, including prescription drugs, for the diagnosis and treatment of infertility for individuals who are unable to conceive due to their sexual orientation or gender identity and are covered under individual, small group, and large group health insurance policies and contracts.

As background, the state’s definition of “infertility’ has evolved over time. In, 2019, this definition was amended to recognize that the determination of infertility may be made prior to the exhaustion of a 6 to 12 month period resulting in a failure to conceive, if warranted based upon an individual’s medical history or physical findings.

According to the letter, DFS became aware of issuers requiring some individuals to incur costs, due to their sexual orientation or gender identity, that heterosexual individuals do not incur to meet the definition of infertility. The issuers apparently denied coverage of basic infertility treatments for some individuals who were unable to conceive without such treatment due to their sexual orientation or gender identity. This resulted in these individuals incurring high costs of basic infertility treatments for up to 12 months to demonstrate infertility in order to qualify for insurance coverage due to their sexual orientation or gender identity, in violation of the state’s insurance laws.

Therefore, the letter requires issuers to provide immediate coverage for basic infertility treatments that are provided to individuals covered under an insurance policy or contract who are unable to conceive due to their sexual orientation or gender identity to prevent discrimination.

Although the letter is directed at insurers, employers may want to be aware of this communication.

Circular Letter No. 3 »

Guidance Provided on Use of COVID-19 Sick Leave

February 02, 2021

On January 20, 2021, the Department of Health released supplemental guidance regarding the application of COVID-19 sick leave for eligible employees. These provisions address an employee’s return to work following a period of COVID-19 sick leave and such employee’s entitlement to additional leave.

The state enacted a law in March 2020 that provided sick leave and job-related protections to employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. Generally, the size and annual income of the employer determine the duration of an employee’s leave and whether such leave is paid. The law did not indicate whether an employee was entitled to leave for more than one order of quarantine or isolation.

The new guidance explains that an employee does not need to be tested for COVID-19 before returning to work following a period of mandatory quarantine or isolation (except for nursing home staff). However, an employee who continues to receive, or subsequently receives, a positive COVID-19 diagnostic test result must not report to work. Such an employee shall be deemed subject to a mandatory order of isolation and shall be entitled to the state’s COVID-19 sick leave, regardless of whether the employee already received such sick leave for the prior period of quarantine or isolation. In such event, the employee must provide documentation from a licensed medical provider or testing facility of the positive test result, unless the employer conducted the test.

The guidance limits an employee’s qualification for COVID-19 sick leave to a maximum of three orders of quarantine or isolation. Each of the second and third orders requires a positive COVID-19 diagnostic test result.

Additionally, if an employer mandates that an employee who is not otherwise subject to a mandatory or precautionary order of quarantine or isolation must remain out of work due to exposure or potential exposure to COVID-19, the employer is required to continue to pay the employee at the employee’s regular rate of pay. Payment at such regular rate of pay would continue until the employer allows the employee to return to work or the employee becomes subject to a mandatory or precautionary order of quarantine or isolation. Once the employee is subject to one of those orders, they would receive sick leave as required by the state’s COVID-19 sick leave law.
 
Employers should be aware of the additional guidance and should review their leave policies for compliance. Employers may want to consult with employment law counsel for assistance.

Guidance on Use of COVID-19 Sick Leave »

2021 HCRA Covered-Live Assessment Rates Posted

January 20, 2021

New York recently posted the 2021 covered-lives assessment (CLA) rates for professional education under the Health Care Reform Act (HCRA). These rates are applicable to health claim payers (including self-insured plans) that elect to pay the assessment directly to the state rather than facing higher surcharges for in-state hospital expenses. The annual amount owed by the payer is calculated based upon the number of covered individuals and families residing in New York.

As background, following New York’s deregulation of hospital fees in 1996, the HCRA was enacted to provide financial assistance to hospitals through special taxes on health plans and medical services. CLA assessments are intended to support the funding of graduate medical education. CLA rates (or alternative surcharges) vary by state region. Accordingly, the applicable charge is based upon where the covered individual resides or receives in-state care.

There were only slight changes in the electing payer CLA rates as compared to 2020.

The CLA assessment is in addition to the indigent care surcharge on services at state hospitals, diagnostic and treatment centers, and free-standing clinical laboratories. The indigent care surcharge is payable regardless of the residency of the covered individual or group health plan sponsor. The current rate, which remains in effect through December 31, 2023, is 9.63% for payers electing to pay the amount directly to the state Public Good Pool and an additional 28.27% for non-electing payers that pay the surcharge to healthcare providers.

Accordingly, group health plan sponsors should be aware of the 2021 rates and surcharges. In some cases, electing plans may have already been notified of the 2021 amounts through the state’s Office of Health Insurance Programs. Employers may want to consult with their carriers or third-party administrators, as applicable, regarding any related administrative concerns. The specific assessment amounts and surcharges by region are available at the link below.

2021 CLA Rates »

Circular Letter Addresses COVID-19 Immunization Coverage

December 22, 2020

On December 16, 2020, the Department of Financial Services (DFS) issued Circular Letter No. 16 to insurers authorized to write accident and health insurance in the state, among other entities. The purpose is to provide guidance related to coverage of COVID-19 immunizations and their administration.

The letter explains the state insurance law requirements for coverage of immunizations without cost sharing under health insurance policies and contracts. Additionally, the federal coverage requirements under the CARES Act are explained. The CARES Act requires issuers to cover recommended COVID-19 immunizations and their administration at no cost sharing under all non-grandfathered group and individual comprehensive health insurance policies and contracts. For the duration of the COVID-19 public health emergency, the coverage extends to COVID-19 immunizations by out-of-network providers, who must be reimbursed at a reasonable rate.

Coverage under the CARES Act is required within 15 business days after the immunization has been recommended by the Advisory Committee on Immunization Practices (ACIP). However, the letter states that given the need for urgency, issuers should cover any COVID-19 immunization immediately upon ACIP’s recommendation rather than wait 15 business days.

Accordingly, issuers are advised to take the necessary measures to ensure that insureds have access to coverage for COVID-19 immunizations and their administration without cost sharing and are provided with the necessary information to access it. In addition, issuers are advised to provide information to providers regarding submission of reimbursement claims and to remind providers that they are prohibited from balance-billing insureds. Issuers are also required to provide DFS with the name and contact information of the person responsible for communicating with DFS regarding implementation of COVID-19 immunization coverage.

Although the letter is directed at insurers, employers may want to be aware of this communication.

Circular Letter No. 16 »

Special Enrollment for Uninsured New Yorkers Extended to Year End

September 29, 2020

On September 16, 2020, Gov. Cuomo announced that the state exchange’s Special Enrollment Period (SEP) for uninsured residents will be extended through December 31, 2020. Affected individuals can apply for coverage through NY State of Health, New York State's health insurance marketplace, or directly through insurers.

Individuals who have lost employer coverage must apply within 60 days of losing that coverage. Those who enroll in qualified health plans by October 15, 2020, will have a choice of coverage start dates of either October 1, 2020, or November 1, 2020. Those enrolling between October 16, 2020, and December 15, 2020, will have a choice of coverage start dates of November 1, 2020, or December 1, 2020. Finally, those enrolling between December 16 and December 31, 2020, will have a coverage start date of January 1, 2021.

The extension is being provided as a result of the COVID-19 public health emergency, so uninsured residents do not avoid seeking testing or medical care due to a lack of coverage. Those who enroll during the SEP will have the option to continue their enrollment in the same plan in 2021 without a break in coverage.

Employers should be aware of this extension, which may provide an alternative for individuals who have recently lost employer provided coverage.

SEP Announcement »

September 29, 2020

On September 30, 2020, the state’s paid sick leave law will become effective. This law requires all private employers to provide job-protected sick leave to employees in the state.

We explained this law in detail in our April 28, 2020, Compliance Corner article. See that article for information on the law’s requirements.

Employers should be aware that the paid sick leave requirements are taking effect and that they must begin tracking the leave accrual requirements. It is also important to update leave polices and employee communications to reflect the leave availability.

See our prior Compliance Corner article on this law here »

Insureds Protected from PPE Fee Assessments

August 18, 2020

On August 5, 2020, the Department of Financial Services (DFS) issued Circular Letter No. 14 regarding personal protective equipment (PPE) fee assessments by healthcare providers. This communication was issued to all insurers authorized to write health insurance in the state, health maintenance organizations (HMOs), student health plans, municipal cooperative health benefit plans and prepaid health service plans.

As background, DFS recently received consumer complaints that healthcare providers, particularly dental providers, were improperly assessing PPE fees and other COVID-19 related charges for in-person visits by insureds. These costs were being passed to insurers and extended beyond the insured patient's applicable cost sharing.

The letter reinforces that participating providers should not bill a patient for any charges that are in addition to the patient's cost sharing obligations for covered services. Insurers should also not cover these charges. Additionally, DFS will not approve policy or contract provisions that hold the insureds responsible for the cost of a healthcare provider's PPE.  

Accordingly, insurers are obligated to ensure covered individuals are not assessed PPE fees. To this end, the letter advises insurers to notify participating providers not to charge PPE fees, to hold insureds harmless for these charges, and to refund PPE fees already collected. Furthermore, insurers must notify insureds that they should not be charged for PPE fees and provide contact information to submit related complaints. The insurers are required to work with providers to resolve related issues and ensure refunds are provided. Finally, within 90 days, insurers are required to report to DFS the amount of PPE fees charged to insureds, the number of insureds impacted and a description of how refunds will be provided. 

Although the letter is primarily directed at insurers, employers may also want to be aware of this guidance.

Circular Letter »

Special Enrollment for Uninsured New Yorkers Extended

July 21, 2020

On July 15, 2020, Gov. Cuomo announced that the special enrollment period for uninsured New Yorkers will be extended for another 30 days, through August 15, 2020. This extension will allow uninsured state residents to apply for coverage through NY State of Health, New York State's health insurance marketplace, or directly through insurers.

The state is in the process of reopening after being severely impacted by the COVID-19 pandemic. Accordingly, the measure was intended to ensure that residents have access to affordable health coverage during this critical period and do not avoid seeking testing or medical care due to cost concerns.

Individuals who have lost employer coverage must apply within 60 days of losing that coverage. Those who enroll in qualified health plans by August 15, 2020, have a choice of a coverage start date of either August 1 or September 1, 2020.

Employers should be aware of this special enrollment period extension, which may provide an affordable alternative for individuals who have recently lost employer provided coverage.

Announcement »


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