On July 1, 2022, the Insurance and Safety Fire Commissioner (the Commissioner) issued Directive 22-EX-5 regarding self-funded healthcare plans electing to participate in the Surprise Billing Consumer Protection Act (the Act).

The Act (originally HB 888) was signed into law on July 16, 2020, and was designed to stop surprise billing to patients receiving out-of-network care for emergency services and non-emergency services at in-network facilities provided without patient consent. For covered items and services, an out-of-network provider may bill a patient only for the cost-sharing amount (e.g., deductible, coinsurance, copayment, etc.) that the patient is responsible for under the terms of his or her plan or policy. The Act specifies a formula to determine the amount the plan or insurer is required to pay the out-of-network provider and establishes an arbitration process for out-of-network providers who believe they should be entitled to additional funds. Subsequently, the Act was amended by SB 566 to clarify that a medical or traumatic condition, sickness, or injury includes a mental health condition or substance use disorder and that emergency medical services include post-stabilization services.

Generally, the Act applies to fully insured plans. However, on April 29, 2021, HB 234 was signed into law, allowing self-funded healthcare plans operating in Georgia to elect to participate in the Act. Directive 22-EX-5 provides the form and instructions for an electing self-funded healthcare plan to notify the Commissioner of its decision. Note that most non-electing self-funded plans would otherwise be subject to the federal No Surprises Act surprise billing prohibitions for plan years beginning on or after January 1, 2022. Electing plans may still be subject to the federal provisions for any items and services covered by the NSA that are not covered by the Act.

Self-funded employers should be aware of this bulletin and may want to consult with their counsel and service providers for further information and guidance.

Directive 22-EX-5 »
HB 234 »
HB 888 Final Rules and Regulations »
SB 566 »

Recently, Gov. Kemp signed two new healthcare bills into law.

HB 733 (Part II) requires insurers that cover diagnostic examinations for breast cancer to treat cost-sharing requirements the same as annual mammograms. Such diagnostic examinations include medically necessary and clinically appropriate examinations using breast MRI or ultrasound to evaluate an abnormality detected by a breast cancer screening or other examination.

For HSA qualified HDHPs, these cost-sharing requirements shall only apply after the enrollee has satisfied the minimum statutory deductible, except with respect to items or services that are preventive care as defined by the IRS (in which case the cost-sharing requirements shall apply regardless of whether the minimum statutory deductible has been met).

SB 341 allows enrollees to receive prior authorization for prescribed medications to treat chronic conditions requiring ongoing medication therapy under certain circumstances.

Under this law, if a healthcare provider receives a prior authorization for a medication prescribed to a covered person with a chronic condition that requires ongoing medication therapy and continues to prescribe the medication, the prior authorization shall be valid for the lesser of one year or the last day of the plan coverage. Additionally, the authorization shall cover any change in dosage prescribed by the healthcare provider during the authorization period.

These provisions shall become effective on January 1, 2023, and shall apply to policies or contracts issued, delivered, issued for delivery or renewed in the state on or after such date.

Employers should be aware of these upcoming changes and review the legislation and/or contact their carrier for further information.

HB 733 »
SB 341 »

On March 7, 2022, the Insurance and Safety Fire Commissioner issued Bulletin 22-EX-1 to insurers regarding ERISA preemption. The bulletin was apparently intended to address questions from state residents regarding why state laws were not enforceable against self-funded ERISA plans.

The bulletin explains that ERISA preempts all state and local laws that “relate to” employee benefit plans covered by ERISA. This broad preemption was designed to enable large employers to offer and administer uniform benefit plans across the nation without being subject to every local and state regulation.

Additionally, the bulletin notes that the recent Rutledge v. PCMA decision by the US Supreme Court is consistent with this preemption principle, i.e., the Rutledge decision found that an Arkansas law dealing with cost regulation was not preempted by ERISA (and thus was enforceable as applied to an ERISA plan). An article on the Rutledge case can be found in this article from the December 22, 2020, edition of Compliance Corner.

Employers may want to be aware of this bulletin, which serves as a reminder of the basic ERISA preemption principle.

Bulletin 22-EX-1 »

On December 9, 2021, the Insurance and Safety Fire Commissioner issued Bulletin 21-EX-16 to remind all health insurers conducting business in the state that House Bill 454 goes into effect on January 1, 2022.

This legislation requires an insurer to reimburse a provider at in-network rates for 180 days (or through the end of the enrollee’s coverage period, if earlier), if a provider is listed as in-network in the insurer’s directory when the individual selects a health benefit plan, and the provider becomes out of network subsequent to open enrollment in the succeeding plan year. In such case, the provider must accept the insurer’s payment as payment in full. Certain exceptions apply.

This guidance is directed at insurers, but employers may want to be aware of the bulletin.

Bulletin 21-EX-16 »

Gov. Kemp recently signed HB 146, which provides paid parental leave to state and public-school employees. The law took effect on July 1, 2021.

Specifically, employees of the state government or local board of education are entitled to 120 hours of paid parental leave after the birth of a child, adoption of a child or placement of a child in foster care in their home. Generally, employees of these entities are eligible for the leave after six continuous months of employment. Hourly employees are required to work a minimum of 700 hours over the six-month period immediately preceding the requested paid parental leave date.

An employee can only qualify for the leave once per rolling twelve-month period but can take the time incrementally over such period. Unused leave does not carry over to the next twelve-month period nor does it have any cash value in the event of employment termination. Employers are prohibited from retaliating against employees for using leave to which they are entitled.

State government and local board of education employers should be aware of the new parental paid leave requirements. Under the law, these employers must produce rules for administering the leave that address whether the leave will run concurrently with other federal leave and documentation requirements. Counsel should be consulted for guidance.

HB 146 »