On March 31, 2022, the Department of Financial Services (DFS) issued a circular letter to advise health insurers of the coverage requirements for preventive care and screenings for colorectal cancer. The memo follows recent federal guidance based on a recommendation by the United States Preventive Services Task Force (USPSTF).

Excluding grandfathered health plans, insurers that issue or deliver policies in New York providing hospital, surgical, or medical care coverage must provide coverage for preventive care and screenings at no cost-sharing. This coverage requirement includes evidence-based care and screenings with an “A” or “B” rating in the USPSTF current recommendations.

The USPSTF updated the recommendation for colorectal cancer screening in May 2021. According to this update, the USPSTF continues to recommend screening for colorectal cancer in all adults aged 50 to 75 years as an “A” rating and adds screening for colorectal cancer in adults aged 45 to 49 years as a “B” rating. Additionally, when stool-based screening tests or direct visualization tests reveal abnormal or positive results, a follow-up with a colonoscopy is needed for further evaluation to achieve the screening benefits. Therefore, based on the updated recommendation, the follow-up colonoscopy must be covered without cost-sharing.

The letter reminds insurers that the updated coverage requirements for preventive care and screenings apply to policies issued or renewed six months after the date a recommendation is issued or revised. Since the USPSTF recommendation was considered issued as of May 31, 2021, insurers must provide coverage for the recommended colorectal cancer screening without cost-sharing for policies or contracts issued or renewed on and after November 30, 2021.

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

Insurance Circular Letter 4 (2022): Health Insurance Coverage for the Prevention of Colorectal Cancer | Department of Financial Services »

The Department of Health posted the 2022 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 the state.

The HCRA was enacted to provide financial assistance to hospitals through special taxes on health plans and medical services. The CLA is 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 increases in the electing payer CLA rates as compared to 2021.

The CLA rates are in addition to the indigent care surcharge on services at state hospitals, diagnostic and treatment centers, and ambulatory surgery centers. 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.

Group health plan sponsors should be aware of the 2022 HCRA rates and surcharges applicable to health services provided at HCRA-designated facilities. Sponsors should consult with their carriers or third-party administrators, as applicable, for additional information regarding the rates, surcharges and related reporting requirements.

2022 CLA Rates GME Regional Covered Lives Assessment Rates »
Indigent Care Surcharges by Payor »

The Department of Financial Services (DFS) issued a series of circular letters designed to address the implementation of certain provisions of the No Surprises Act (NSA) of the Consolidated Appropriations Act, 2021 (CAA). These provisions became effective for plan years beginning on or after January 1, 2022. The guidance, which is directed at insurers and healthcare providers, outlines the necessary changes to existing state laws and processes to incorporate the NSA requirements.

Circular Letter No. 10 addresses the NSA surprise billing independent dispute resolution (IDR) process and disclosures. The NSA surprise billing prohibitions are designed to protect participants from surprise bills for emergency services, air ambulance services and certain out-of-network services received at in-network facilities. Under the NSA, cost-sharing for protected items and services is determined by the federal IDR process, but only in the absence of an applicable state law.

The guidance explains that state law provides surprise billing protections, so the state’s IDR process will continue to apply to out-of-network emergency services and surprise bills. However, federal protections expand the state’s protections in certain circumstances. As a result, the state’s IDR process was modified to incorporate the more extensive federal requirements beginning on January 1, 2022. These changes expand the types of hospitals, providers and services eligible for the state’s IDR process and eliminate previous exemptions for certain emergency services based on code numbers. Additionally, the state IDR process was revised to align with the federal rules with respect to participant cost-sharing limitations and prohibitions of waivers of the surprise billing protections.

Circular Letter No. 11 focuses on the NSA continuity of care provisions, which allow participants undergoing care for certain conditions, including pregnancy, to continue such care under the same terms and conditions following a provider’s contract termination with the insurer. The letter reminds insurers that they must comply with the NSA, as well as the state’s continuity of care requirements (when the state’s protections are more expansive than those under the NSA).

Circular Letter No. 12 addresses the NSA provider directory and insurance identification card requirements. The NSA adds to the state’s existing law requiring insurers to maintain updated directories of in-network providers. For example, the NSA prohibits insurers from imposing cost-sharing greater than in-network rates when a participant receives a bill for out-of-network services resulting from inaccurate provider network status information. The letter indicates the state’s provider directory and insurance identification card requirements will be updated to include the NSA requirements.

Although the letters are directed at insurers and providers, sponsors of insured plans may want to be aware of these developments.

Insurance Circular Letter No. 10 (2021): The No Surprises Act, Independent Dispute Resolution Process and Disclosure of Protections from Balance Billing | Department of Financial Services »
Insurance Circular Letter No. 11 (2021) | Department of Financial Services »
Insurance Circular Letter No. 12 (2021): Provider Directory and Health Insurance Identification Card Requirements under the No Surprises Act and State Law | Department of Financial Services »

On December 27, 2021, New York City’s COVID-19 vaccine mandate for private sector employees took effect. This mandate applies to all employers, regardless of size. Related guidelines were issued by the Department of Health (DOH) to assist employers with compliance.

Under the mandate, employees in New York City who perform in-person work or interact with the public must show proof they have received at least one dose of a COVID-19 vaccine (unless they have requested an accommodation for medical or religious reasons). For two-dose vaccines, employees then have 45 days to show proof of their second dose. The acceptable forms of proof for this purpose are specified. The DOH materials also include some guidance for employers regarding the handling of reasonable accommodation requests.

Employers are required to maintain confidential records of employee vaccinations or requests and records of reasonable accommodations. Unvaccinated employees may not be permitted to report to their physical workplace unless they have requested an accommodation. Employers are also required to publicly post a signed affirmation of compliance with the vaccine mandate. The guidelines provide a certificate for this purpose.

Affected employers should be familiar with the DOH guidelines, which include a hotline number for small businesses seeking assistance with the requirements. Compliance questions and concerns should be directed to employment law counsel.

Order »
FAQs »
Workplace Requirements Guidance »

On December 24, 2021, New York City enacted a law that allows employees to take paid time off in connection with vaccinating their children for COVID-19. The law’s provisions, which amend the Earned Safe and Sick Time Act, apply retroactively to November 2, 2021, and will expire on December 31, 2022.

Specifically, parents are entitled to up to four hours of COVID-19 child vaccination time per injection for each child, for an absence from work to accompany the child to receive the vaccine or to care for a child experiencing temporary side effects from the injection. The child must be under the age of 18 or incapable of self-care due to a mental or physical disability. “Parents” include biological, step or adoptive parents, legal guardians, as well as those who stand in loco parentis.

This leave time is in addition to amounts already required under the Earned Safe and Sick Time Act. For the leave period, employees are generally entitled to compensation at their regular rate of pay at the time the leave is taken.

If the leave is foreseeable, the employer can require an employee to provide advance notice of the need for leave time (not to exceed seven days) and supporting documentation.

Employers that fail to pay employees for the child vaccination leave may be assessed amounts up to three times the wages that they should have paid or $250, whichever is greater. Employers may also be subject to civil penalties of $500 (or more if there are multiple violations). However, these penalties will not be imposed until 60 days after the enactment date.

Employers should be aware of these new requirements and should contact employment law counsel for compliance assistance or further information.

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On December 22, 2021, the Department of Labor (DOL) released final regulations on the state’s Paid Sick and Safe Leave Law, which has been in effect since September 2020. (See our April 28, 2020 edition of Compliance Corner for more information on the law.) The final regulations do not reflect any changes to the proposed rules issued in December 2020. However, the new guidance attempts to address comments regarding the proposed rules and clarify certain outstanding issues, including carryover requirements, leave accruals, employee counts and supporting documentation and attestations.

With respect to carryovers, the leave law requires that accrued sick leave hours be carried over to the next calendar year. The guidance explains that employers cannot cap the unused carryover amounts, even if the employer frontloads leave time at the beginning of the year. Rather, an employer can either: (1) give employees the option to voluntarily elect to use and receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave.

The law mandates that employees accrue one hour of leave for every 30 hours worked. When determining accrual for time worked in increments of less than 30 hours, employers may round accrued leave for administrative ease. However, such rounding cannot result in a failure to provide the proper accrual of leave to employees for the time they have actually worked. Additionally, employees must be able to use accrued sick leave upon accrual; employers cannot impose a waiting period for the use of the sick leave.

According to the DOL, the employee count used to determine the law’s application should include all employees of the employer nationwide. However, the sick leave applies only to employees in the state.

Regarding leave documentation and attestation requirements, the DOL indicated it would publish a template for employee attestations. The guidance emphasized that employers may not deny leave while seeking to confirm the leave basis nor require employees to pay costs to obtain verification of their eligibility to use sick leave. Additionally, documentation requirements for leave less than three days is not considered necessary to prevent potential employee abuse. However, if the employer learns a leave request is false or fraudulent, the employer may take disciplinary action against the employee.

Employers should be aware of the final rules. Related questions or concerns should be directed to employment law counsel.

New York State Register (See Pages 16 – 18) »

Several changes to the state’s paid family leave (PFL) law were recently adopted. The first amendment clarified the amount of intermittent PFL available to employees working more than five days per week. The second change amended the definition of family member for PFL purposes to include siblings.

The PFL law was designed to provide paid job protected leave for eligible employees to care for a new child following birth, adoption or placement in the home, to care for a family member with a serious health condition, or for qualifying exigencies related to military duty. Employees are eligible for up to 12 weeks of PFL in a 52-week period at 67% of their average weekly wage, up to a maximum set by the state.

Effective January 1, 2022, the 60-day cap on intermittent leave will be removed. Under the new amendment, intermittent leave benefits will be calculated by multiplying the average number of days per week that the employee works by 12 weeks. This will enable those working more than five days per week to receive the proportionate amount of leave to which they are entitled. For example, employees who work the equivalent of six days per week will be entitled to 72 days of PFL to be used intermittently in a 52-week period. The amendment will apply to all eligible employees for leave requests made on or after January 1, 2022 (and not for claims initiated prior to this date, even if the PFL continues to be paid in 2022).

Effective January 1, 2023, the definition of family member for PFL purposes will be expanded to include biological and adopted siblings, half-siblings and step-siblings. This will allow employees to take leave to care for a sibling with a serious health condition. Currently, family members for PFL purposes include a child, parent, grandparent, grandchild, spouse and domestic partner. 

Employers should review their current PFL policies and procedures and be prepared to comply with the updated requirements, once effective.

Adoption of Amendment to 12 NYCRR 380-2.5(c) (PFL Intermittent Leave) »
S 2928A »

On August 31, 2021, the Department of Financial Services (DFS) announced the applicable premium rate and maximum employee contribution for Paid Family Leave (PFL) coverage beginning January 1, 2022.

The state’s PFL program was first implemented on January 1, 2018. The program is intended to provide eligible employees with a portion of their wages while taking time off to bond with a child, care for a family member with a serious health condition, or handle personal matters arising from an immediate family member in the Armed Forces being called to active duty.

The PFL premium rate, like the benefit amount, is set as a percentage of an employee’s covered wage, so the premium paid by an employee depends on how much an employee earns. Accordingly, those earning less will pay a lower premium, and those earning more will pay a higher premium as they are eligible for higher benefits, up to the maximum PFL benefit of 67% of the statewide average weekly wage, which is $1,594.57 for 2022.

The premium rate for PFL benefits for coverage beginning January 1, 2022, shall remain at the level of the premium rate applicable to calendar year 2021, and be set at 0.506%, plus 0.005% for the risk adjustment for COVID-19 claims, for a total of 0.511% of an employee’s wages each pay period up to and not to exceed an annual maximum employee contribution of $423.71.

The PFL benefits are community rated to ensure all employees are similarly treated and not subject to cost variances based upon age, gender, location or other factors. According to DFS, the community rate for 2022 was based upon a review of claims, demographic, financial and other PFL data for 2018, 2019, 2020 and the first six months of 2021, as well as data from other states that have enacted similar programs.

Employers should be aware of the announcement and work with their carriers and payroll providers to ensure the premium rates are properly implemented and communicated.

Decision on Premium Rate for Paid Family Leave Benefits and Maximum Employee Contribution for Coverage Beginning January 1, 2022 »

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 »

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 »