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Compliance Corner

State Updates

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 »

Governor Restricts COVID-19 Paid Sick Leave for Voluntary Travelers

July 07, 2020

On June 26, 2020, Gov. Cuomo issued Executive Order 202.45, which modifies certain laws relating to the COVID-19 disaster emergency. Among other items, the order restricts employee eligibility for the state’s COVID-19 paid sick leave following voluntary travel.

As background, on June 24, 2020, Gov. Cuomo issued Executive Order 205, which imposed a two week quarantine on travelers arriving in New York from other states with high COVID-19 positive test rates. Specifically, the restriction applies following travel to a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average.

However, Executive Order 205 did not address whether employees who voluntarily travel to such high risk states, which currently include Florida, the Carolinas and Texas, are eligible for the state COVID-19 paid sick leave upon return. Such leave would otherwise normally be available to employees subject to a mandatory or precautionary COVID-19 quarantine order, with certain variations based upon the employer size and net income.

Accordingly, Executive Order 202.45 modified the NYS COVID-19 Paid Sick Leave Act to clarify that effective June 26, 2020, employees who commence voluntary travel to high-risk states shall not be eligible for the state’s paid sick leave or other paid benefits. The restriction does not apply to travel that is work-related or at the direction of the employer.

Although affected employees may not be eligible for the state paid sick leave benefits, they may still be able to use any employer provided accrued leave for the quarantine period. Additionally, depending upon the employer size, certain employees may still potentially qualify for federal FFCRA paid sick leave.

Employers should be aware of these developments and provide notice to employees regarding the limitations on availability of the state paid sick leave following voluntary travel to high-risk areas. They may also wish to consult with counsel for additional guidance.

Executive Order 202.45 »

Cost Sharing for In-Network Covered Services Via Telehealth Prohibited During COVID-19 Emergency

June 23, 2020

On June 11, 2020, the Department of Financial Services amended the state’s Insurance Regulation 62 to prohibit cost sharing for in-network covered services provided via telehealth during the COVID-19 emergency. The amendment pertains to all policies or contracts delivered or issued for delivery in the state.

Given the public health implications related to COVID-19, the amendment is intended to enable state residents to continue to access healthcare services in a way that limits the spread of COVID-19 by encouraging the use of telehealth services. The measure is also designed to alleviate unnecessary stress on health and emergency care systems.

Specifically, this amendment prohibits insurers and health maintenance organizations that provide comprehensive coverage for hospital, surgical or medical care from imposing copayments, coinsurance or annual deductibles for an in-network service otherwise covered under the policy when such service is delivered via telehealth during the state’s COVID-19 emergency. The measure also requires every healthcare plan to provide written notification of the requirements of the amendment to its in-network healthcare providers to ensure they do not impose cost sharing upon insureds.

The amendment is primarily directed at issuers and health maintenance organizations; however, employers may also want to be aware of this development.

Insurance Regulation 62 Amendment »

Circular Letter Addresses Coverage for COVID-19 Testing at Pharmacies

June 09, 2020

On May 22, 2020, the Department of Financial Services (DFS) issued Circular Letter No. 12 regarding coverage for COVID-19 testing at pharmacies. This communication was issued to all insurers authorized to write health insurance in the state, amongst other parties.

In order to increase access to COVID-19 testing in the state, Gov. Cuomo previously issued Executive Order 202.24. This directive authorized licensed pharmacists to order and administer FDA approved tests to detect a COVID-19 infection or its antibodies. It also allowed pharmacists to be designated as qualified healthcare professionals for the purpose of directing limited service laboratories to conduct such tests.

The purpose of the circular letter is to advise insurers of their coverage obligations with respect to the pharmacy COVID-19 testing. Accordingly, issuers are reminded that diagnostic testing is an essential health benefit and therefore must be covered under individual and small group health insurance policies. Under state insurance laws, issuers of large group policies must also make coverage available for laboratory tests.

Furthermore, the coverage for the COVID-19 testing at pharmacies must be provided without cost sharing. State insurance law and the CARES Act prohibit the assessment of copayments, coinsurance or annual deductibles for both in-network and out-of-network COVID-19 testing. For out-of-network testing, the issuer must pay the provider’s publicly listed cash price, unless a lower rate is negotiated.

The letter is primarily directed at issuers, but encourages third party administrators licensed as independent adjusters by the state to apply the provisions to their administrative service arrangements with self-funded plans. Employers may also want to be aware of this correspondence.

Circular Letter No. 12 »


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