David 0:00

With all of the crazy in the world, it's amazing. Legislative and regulatory policy just keeps on going like the Energizer bunny. So the question is, what's new, and what do you need to know in order to advise your clients better? We'll find out on this episode of Shift Shapers.

Announcer 0:18

Change either paralyzes or energizes. The choice is yours. You're listening to the Shift Shapers Podcast. You're about to learn firsthand from businesses and entrepreneurs who have successfully shaped the shifts in their industries. Get ready to become the change you want to see. This episode is brought to you by Shift Shaper Strategies. In sales, if you confuse, you lose. Clarify your message so you win more clients, crush your sales goals, and build your practice. Learn more at ShiftShaper Strategies.com. And now, here's your host, Storybrand Certified Guide and Chief Transformation Strategist at Shift Shaper Strategies, David Saltzman.

David 1:10

And we've asked Jessica Waltman, old friend of the program, who is now the vice president of compliance at MZQ Consulting, which is a concierge compliance firm. And that's new. Hey Jess, tell us a little bit about the new firm.

SPEAKER_01 1:23

Hi, David. It's so great to be back. First of all, I just want to uh apologize for my appearance here. The last time I was on the podcast, we were not so fancy and there was no video involved. So you get to see me oh natural, you know, late 40s look about to go to the gym later. So anyway, um, yes, I joined MZQ consulting as their VP of compliance about two years ago for real. I worked for them kind of a consulting basis for a number of years before that. But we do all kinds of employee benefit compliance consulting. We do employer reporting with a very concierge level. So any employers or groups out there that just want to send in their messy shoebox of records, we'll take it, we'll do your reporting. We do all the normal normal notices, wrap documents, 5,500s, that type of stuff. We have a consulting service where we'll be your back-end compliance. So we'll answer all your tricky questions, help you talk with your clients. We do a lot of communication materials like newsletters and stuff that you can get access to. And then last year, after the passage of the Consolidated Appropriations Act of 2021, which made mental health parity a much bigger focus than it had been previously, we started our mental health parity product. So we will do those non-quantitative treatment limitation analyses that every group health plan has to have on hand and keep current. And then we also do the quantitative treatment limitation analyses that really all self-funded plans need to do annually to make sure that their co like their cost sharing is all right.

David 3:28

And you're still giving expert advice, which is why we like to have you on the program for expert advice. So, you know, are you ready to rock and roll?

SPEAKER_01 3:35

Yes.

David 3:36

Okay, cool. So the decision whose name should not be spoken has caused havoc in all kinds of quarters with all kinds of wacky questions, which just tells you how complicated our whole universe has gotten. And that would be Dobbs. Let's talk a little bit, because I know there's a lots of questions out there in the universe, and there's still a lot of stuff. It's like I tell people there's there's known knowns, there's stuff we know we know, and there's known unknowns, which are the things we don't know, but we know those, and then there's unknown unknowns, which is things we don't know we don't know yet. And so let's talk about the things we know and what we think is coming down the pike and how that is going to affect employee benefits questions. I'll leave that to you.

SPEAKER_01 4:14

Okay. So first of all, I want to preface this by saying that everyone has complicated feelings about this decision. And some of them might say they don't, but they don't even know the details. And if you do, you probably do. And I will just say personally, I'm a devout Catholic who had an ectopic pregnancy. So from my own personal point of view, this and all the fallout has become very complicated to me personally, and I know everyone listening has big feelings. So let's put those big feelings aside and just talk about the facts as we know them relative to employee benefit plans. Now, some employers felt very, very strongly or continue to feel strongly about providing their employees access to abortion services. Some group of health plans already excluded services related to abortion or things they did. So, first of all, there is something called the um presidency discrimination act of 1978. 1978, longtime federal law, and it actually amends Title VII of the Federal Civil Rights Act. So civil right here. Title VII is the part of the Civil Rights Act that relates to employment. So what the pregnancy discrimination act says is that any group benefit plan has to cover any medically necessary service, you know, procedure, what have you, that is deemed an abortion, which means a lot of things that wouldn't technically be like considered an elective abortion, but uh things like a topic pregnancy treatment or you know a miscarriage or someone that you know um like their water broke at 14 weeks, something like that, those are all medically considered to be an abortion, and even if your plan does not cover abortion services, anything that is needed because it endangers the health of the mother is covered, must be covered. So that protection is already in group health plan services. And I think a lot of plans and group sponsors didn't understand that. And then states may have laws that protect the health of the mother, but a lot of those laws set it at a higher bar than endangering the health of the mother. So there may be states or certain providers in certain states right now that are reluctant to provide treatment to women that would technically be required to be covered by their group health plan. So that kind of sets up a tricky situation for any employer. But depending, it doesn't matter really what the employer's views are on covering elective abortions, every group health plan has that requirement, a federal mandate in it. Two, the Pregnancy Discrimination Act does unequivocally provide group health plan sponsors the ability to cover or exclude of elective abortion services. So that did not change this alright like because of the DOS decision. Then we get into a lot of plans that want to cover travel related to abortion services. So a couple of things with that. There have been some really public national ads, you know, big declarations, press releases from national companies that have said that they're doing this. There's been lots of smaller companies that have just tried to add it to their plans. Sometimes you see fully insured plans changing their structure or giving employers the option. You also see TPAs or you know, carriers that are serving as an ASO function, trying to give employers options. So I just want to make sure every group plan that is considering it understands the facts. And basically, this is trickier than you think. So if you include it, it's just generally part of your group plan to everybody that's participating in the group plan. That's one way to go. If you do that, travel, medically necessary travel is a benefit that's subject to tax, you know, preferable status as a medical expense. There are some limits about how much travel and like the value of the travel, and you're allowed to bring one support person with you and cover that. So you would have to follow the IRS rules relative to cover travel. The other thing is though, going back to that mental health parity requirement that I was talking about earlier that MCQ works on, you have to provide parity in services. So if you provide travel cover for abortion services, which are medical surgical, you need to have something. You can get a parity issue if you're not covering travel related to out-of-state medical care that relates to mental health and substance use disorder services. And a lot of times, inpatient placements for those are out of state. So there's that issue that you have to contend with. Then the other thing that you have to think about. So you can come up with a parity problem. You also have to think about the level and what you reimburse for. So how you structure that benefit is very tricky. Sometimes people want to put something in that say, well, we're only covering medical travel for something that's like illegal in the state where you are. So one of the issues with that, well, there's a couple. One, a lot of plans restrict coverage of illegal activity, kind of a standard exclusion. Two, depending on the states involved, you may wind up against um state laws relative to aiding and abetting. So is that something that you want to get involved with? So those are some considerations: parity, state laws, illegal activities, how you structure the benefit, the value of the benefit. Other people have thought, well, we want to do something outside of the medical benefit plan. You know, do we do something through an HRA? Do we do something for people that are eligible? Like, how do we do this? Well, you get into some tricky tax stuff there because the IRS does consider medically related travel a health benefit. And so not only do you have to deal with those dollar limits, but if you put something in that is just for services related to abortion, so a limited medical benefit plan, then you get into the big problems of you have to basically comply with ERISA, you have to comply with Cobra, you know, all of the things, the ACA requirements, and it's you've, you know, you've set up a group health plan. And the group health plan has all the rules and responsibilities related to it. Another issue that you want to think about is privacy. So, how do you handle the reimbursement for all of this? What, you know, what kind of medical information are you then bringing on site and how is it being handled? There's a lot of rules regarding protected health information, like what you then have done. And then also, if you have medical information about employee, and this is kind of just general, like this came up with vaccinations, all kinds of things, that needs to be stored completely separately than any other type of employee record, so that you know, no supervisor or something that might be looking at, say, like someone's salary history could ever get it, and needs to be set aside and completely its own secure system. So all of those things need to be taken into consideration should you want to put in a travel benefit, and you know, how you want to structure that travel benefit. So just keep those in mind. And, you know, it may be something that the group looks at overall and says, this is a nice thought. This is something we wanted to do, but maybe we can or we can't. We have to look at the overall, you know, ability of our plan to deal with this. So that's employee benefits and dobs. And there will be many questions. I expect a lot of this to be litigated.

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David 14:36

Yeah, I imagine so, because it's America and you know, that's what we do. I can't remember anything that's had as broad a pervasive and pervasive an impact since maybe HIPAA. It's like every question generates two new questions. And, you know, it's what's the best advice for short-term on the employers? Is there anything that they should or shouldn't do in the short term while there's so much in flux? What would you advise somebody?

SPEAKER_01 15:04

I mean, honestly, I would look at first of all, well, what does your plan actually cover? Because some plans, you know, you know, they may not really realize what they have. A lot of times self-funded plans take a standard list of exclusions. So maybe they should look to see what they already cover. They should think about the Pregnancy Non-Discrimination Act. They should think about where their employees are and what the access to services where they are. So, I mean, just as an example, if I ran a company, I mean, I my company, MCQ, is headquartered in Maryland. Or maybe I should just use an different example. I won't put MCQ, which I don't own, on the table. A fictional company that I own in, you know, say Pennsylvania. Right now, there is access to abortion services up to, I think, 20 weeks in Pennsylvania. There's readily access in, you know, New York, New Jersey, like the bordering states. I have employees. Maybe I have one employee in Kansas. Like, what do I do relative to that one employee? I mean, you would have to, you know, weigh your options. Like, who is that employee? Is this some type of service that we think they would need? Because it is complicated and it is expensive. So I would look at, you know, kind of who you have, where you are, what the likelihood you have of employees that need a benefit. And say you're located in Texas and you feel very strongly that you need to do something, then I would go talk to counsel, Arissa Council, to think about how to best structure it and what your exposure might be, particularly in states that you know you have a possibility of aiding and embedding charges, or there may be liability for the company. And honestly, everybody has to evaluate their own legal risk and the cost and the complications. And there may be situations where our employers really do have to make tough decisions and their intent may be one thing and their desire to do something may be one thing, and it might be too complicated for them. Everybody needs to make their own choice. But I mean, I would say it's a lot trickier than you think. And I would not just go out, whole hog, and issue a pressure statement or promise things to employees until you evaluate the situation thoroughly.

David 17:15

If you're in a fully insured plan, what questions do you ask your carrier?

SPEAKER_01 17:19

Well, so that's an interesting question. I mean, you have to look at state law too. So some state laws, because fully insured carriers are more subject to state laws, so some states have guaranteed protections so that that service goes through. Some states already have laws where that was prohibited as coverage. Some states it was already required as coverage. So I'd start with looking at what does your state law already say? And if there's any state laws pending and what your legislature looks like and what your governor looks like, because, you know, you may be having a number of these states have one thing on the books now, and then they have trigger law, you know, that things may be changing. So kind of look at your landscape over the next couple of months. And I would start there. And then, you know, for example, if you are located in New Jersey, that's already part of the state law, it's completely protected, that's already part of your coverage. So you don't really have to worry about anything. If you're in Texas, that's a totally different situation, and you're probably not going to be able to buy fully insured coverage that includes access to, you know, an elective procedure or what they believe to be an elective procedure within the bounds of time frame. I'm not even 100% on what the Texas law is at this minute, but you know, it's we like I'm just using it as an example of a state where it's pretty, pretty strict, or another state where there's a trigger law that has come in place with a complete ban. And then I would also just talk to the carrier and carrier rep about the Pregnancy Discrimination Act and to be able to ensure that the services that someone may be entitled to for things that really are for the health of the mother that could jeopardize someone's life if they couldn't get those services, you know, how are those being handled? It's my understanding in a lot of the cases. I mean, unfortunately, the provider also has to weigh their risk, and some medical systems are delaying care or choosing different options of care to protect themselves. And, you know, that does put it could put the employee benefit plan, you know, with exposure assurance. And this is where I think a lot of the litigation is going to come into play because I mean, there are laws that conflict with one another. And, you know, the group benefit plan is obligated to provide that coverage. There, you know, but that doesn't mean that the coverage is there. That doesn't mean that the care is necessarily available in that moment, and that's unfortunate.

David 19:42

We've got just about a minute left. One other quick question. I there's so much that we wanted to talk about, and we're just not going to get to it all in this episode. Well, you know, this is like, you know, how do you eat an elephant one bite at a time, but it's still an elephant and it's a big meal, so there's a lot to talk about. One of the questions that I've gotten is if you are an ERISA plan, is there any immediate need to go out and amend your plan documents?

SPEAKER_01 20:02

If you're a self-funded plan? No, I would first of all start by reading your plan document and see what you already cover, which uh you would think that would be obvious, but a lot of groups don't really have a great handle on that. So that would be my first thought. And then if you look at it and you think, oh wow, this does not align with our values, or you know, we want to change something. Maybe you don't cover elective services and you do want to cover them, not necessarily putting in a travel benefit. You know, that is something that they might want to change. But no, I wouldn't go running out and doing anything right away. I would read what you have, think about what you want to do, then also think about, you know, how you want to do it. And like I said before, evaluate all the potential legal, you know, concerns that you may have. You know, do you want to do this through the group plan? If so, how will you deal with the mental health parity issues? And how will you deal with reimbursement? You know, if you want to do it outside the medical plan, how do you well remember you are creating another medical plan? So is that something you want to do? Actually, probably not. You know, that's where I would say you probably do want to seek counsel about the best way to do it.

David 21:20

Well, and with that esoteric and far-fetched notion of, my gosh, go read your plan documents, we'll have to leave it there for today. Jessica Waltman, VP of Compliance at MZQ Consulting, and one of our favorite humans. Jessica, thank you so much for spending time with us today. Please come back.

Announcer 21:35

Thank you, David. Oh, I would love to. The Shift Shapers Podcast is a production of Shift Shaper strategies and may not be reproduced or quoted in whole or in part without our express written permission. Copyright 2020, all rights reserved.