Speak with an adviser 678.821.3508

"tobacco
Uncategorized

New Class-Action Lawsuits Target Group Health Plan Tobacco Surcharges

A new wave of class-action lawsuits is targeting employers that apply health insurance premium surcharges to employees who use tobacco, accusing them of discrimination and violating the Employee Retirement Income Security Act (ERISA), according to two new blogs by prominent law firms.

The lawsuits, according to a blog by Chicago-based Thompson Coburn LLP, assert that the surcharges are violations of fiduciary duty rules under ERISA, as well as discrimination regulations under the Health Insurance Portability and Accountability Act (HIPAA).

The law firm says these cases are being filed across the country on an almost daily basis and to date no courts have ruled to have the cases dismissed.

The fast-developing lawsuit trend is notable, considering that tobacco surcharges are widely used, and if any of the new lawsuits are successful, they could set a precedent that could expose thousands of employers to legal action. Most of the lawsuits are against self-insured plans, but even employers who purchase health insurance and also impose surcharges for tobacco use could be targeted as they are considered “fiduciaries” under ERISA.

The lawsuits hinge, in part, on a HIPAA prohibition on group health plans and wellness plans discriminating on the basis of health status. For example, health plans are barred by the law from charging higher premiums to group health plan participants with pre-existing conditions.

However, HIPAA has one exception to the rule: It allows plans to charge different premiums for employees who enroll in and adhere to “programs of health promotion and disease prevention.”

You can find HIPAA’s non-discrimination rules for wellness plans here.

The lawsuits target a common practice: requiring employees who use tobacco to pay higher health plan premiums than their colleagues who certify that they don’t use tobacco products (cigarettes, e-cigarettes, chewing tobacco and similar products).

Common themes

The lawsuits have two common themes. They allege that the plan:

  • Did not provide an alternative standard for tobacco users to obtain a discount because the premium reductions for participating in the wellness plans are only available on a prospective basis, in violation of ERISA Section 702, and
  • Failed to provide information on the existence of such alternatives in “all plan materials.”

The lawsuits typically seek several of the following remedies:

  • Declaratory and injunctive relief.
  • An order instructing the employers to reimburse all persons who paid the surcharges, with interest.
  • Disgorgement of any benefits of profits the businesses received as a result of the surcharges.
  • Restitution of all surcharge amounts charged.

It should be noted that as of the end of October 2024, no court has ruled on a motion to dismiss a case, according to the blog. At least one case has settled as a class action and the employer and plaintiffs in another class-action case had informed the court that they were working on a settlement agreement and would both ask the court to dismiss the case.

In addition to these private actions, the Department of Labor has sued several employers targeting premium surcharges, including in 2023 when it brought action against a firm whose health plan was charging tobacco users a $20 per month surcharge, according to a blog by Washington, D.C.-based Groom Law Group.

The takeaway

Thompson Coburn said in its blog that these types of cases are snowballing: “Given the number of complaints being filed weekly — at times daily — it is highly possible that any group health plan that applies tobacco surcharges as discussed faces the possibility of a class action lawsuit.”

The law firm recommends that businesses consider reviewing their health plans to ensure that they comply with HIPAA’s non-discrimination rules for wellness plans, which allow tobacco surcharges when applied properly, such as charging different premiums for workers who enroll in and adhere to a program that’s focused on promoting health and preventing disease.

This is a newly evolving threat to employers. We’ll provide future updates after courts rule on the merits of the cases, which will provide more guidance on when tobacco surcharges can be applied.

"open
Uncategorized

Open Enrollment Prep: Identify Workers’ Needs, Consider Costs to Plan Benefits

It’s almost time for year-end small group open enrollment and you need to drive engagement so that your employees can make informed decisions about their health insurance options.

We want to help you help your employees understand all of their options so that they can purchase a plan that is appropriate for their situation. So here is our advice for the open enrollment:

Listen to your workforce

Before you make any decisions, you should listen to your employees and better understand their needs and preferences.

With answers and feedback in hand you can create a benefits package which is more appealing to them, which in turn gives you a competitive edge when attracting and retaining workers.

Engage employees and solicit feedback through quarterly employee-benefits round table meetings. Invite employees from different age groups and different departments to participate in these meetings to ensure you have a good cross-section of your staff represented.

Give advance notice

You can start this month with simple reminders for them to start thinking about open enrollment and evaluate their current health plans. Send out memos and place posters in high traffic areas.

If you start with this in September or October, they can have time to assess their options, particularly if anything has changed in their lives like marital status, new children or health issues.

Costs are paramount

You can work with us to settle on plan arrangements that will be within your and your employees’ budgets (in their case, the plans also have to be deemed affordable under the Affordable Care Act).

Employees have a right to understand the costs, so let them know how to access the free transparency tools provided online by most medical carriers. Provide employees with a breakdown of medical and pharmaceutical cost increases to avoid sticker shock.

Get an early start

If your plan year starts Jan. 1, you should hold open enrollment meetings and dispense plan materials in October or November.

Avoid holding meetings in December. It’s too busy and the ramping up period is too short.

Communicate effectively

Your task is to get employees out of cruise control and truly assess all of their options.

This is especially true if you are making changes to cost-sharing, introducing new plans, introducing a wellness plan or health savings accounts or flexible spending accounts.

You should use a variety of different media to communicate with your workforce.

Use video, virtual and live meetings, e-mail communications and print materials to get through to your employees. While the attentive ones may think it’s overkill, using different forms of communication ensures that you reach the widest number of staff.

Get spouses involved

If you also offer insurance to spouses, you should communicate through your employees that they are also invited to join your open enrollment meetings.

You can also invite them to view any electronic material you may post online, like the aforementioned videos.

If they cannot make a general meeting, you can invite them to come in to meet with your human resources manager if they have questions.

Remind them of the Law

You can use open enrollment as a way to remind your staff of their responsibilities to secure coverage under the Affordable Care Act.

Let them know that employees who refuse affordable coverage from their employer and opt to purchase it on a public exchange will usually not be eligible for government premium subsidies.

Ask us about the most frequently asked questions about the ACA and we can help you prepare a list of online resources that they can access to get answers to those questions you may not be able to answer.

The meeting

Send out meeting notices early to give your employees time to prepare and set aside time.

Try to make the meeting engaging.

You may want to consider video recording the session and also providing remote access to employees who don’t work onsite.

Provide enough time for the main presentation as well as questions from your employees.

"open
Uncategorized

Study: More Than Half of Workers Regret Open Enrollment Decisions

More than half of employees regret the coverage decisions they make during open enrollment, according to a new study.

Part of the problem may be that the average employee spends only 30 to 60 minutes selecting their benefits during open enrollment, which typically lasts about two weeks in most workplaces, according to the study by financial service firm Equitable. For perspective, the average American spends 120 minutes a day on social media.

The findings in the study underscore the importance for continuing education and outreach on their benefits and providing your workers the opportunity to ask questions in a private setting.

The top reasons employees cited for regretting their decisions include:

  • 25% said they failed to adjust their benefits to match their lifestyle changes.
  • 20% forgot to make changes to their benefit selections by the deadline.
  • 19% did not understand the options available or the benefits they selected.

It should be noted too that sometimes the regret comes after the plan year starts and an employee in a high-deductible plan, low- or no-premium plan has a health issue that crops up or an accident, and has to pay thousands out of pocket. At that point they may rue their choice, even though they would have paid more in premiums.

One of the more disturbing findings from the study is that nearly 25% of workers said they go to social media to educate themselves about employee benefits. The numbers were highest among Gen Z workers (43%) and millennials (37%).

On the other side of the spectrum, 67% of baby boomer employees and 60% of Gen X workers were more likely than younger generations to rely on information provided to them by their employer and benefits broker when making health plan and other coverage decisions during open enrollment.

How you can help

Employers can help their employees make smart health plan decisions by:

Not inundating them with lengthy educational materials. Often clear and concise materials are best, especially ones that use bullet points and infographics. Benefits experts recommend providing employees bite-sized information that can help them whittle down their choice.

The materials should give different scenarios for workers to help them decide on a plan, such as:

  • A 27-year-old single female employee with no health problems, spouse or dependents.
  • A 46-year-old married father of three young kids.
  • A 58-year-old divorced woman with high blood pressure and asthma.

Keeping the open enrollment period short. Many brokers will tell you that the longer the open enrollment period, the more likely it is that employees will procrastinate on choosing their plan(s) and rush at the last minute. For best results consider a two-week period, and a run-up that includes education and outreach.

Helping them prioritize the basics. There are a few areas that they should review to make sure they choose wisely.
Some areas they can focus on include:

Retaining their doctor — Even if you are offering the same plan as last year, it’s a good idea to tell your employees to check the plan to see if their physician or their kids’ pediatricians are on the list of providers. Health plans make changes every year, so it’s important to check.

Getting the financial balance right — Many people end up spending more up-front on higher premiums in exchange for lower out-of-pocket maximums and/or deductibles, when they shouldn’t.

A young, healthy person that rarely visits the doctor may be better off with a plan that has lower premiums and a higher deductible, which they will not likely reach.

Worst-case-scenario calculation — Your employees should understand the implications if they suffer a medical crisis. For a full perspective, they can:

  • Calculate the total premium they will pay for the entire year (their monthly premium contribution x 12), and add
  • The out-of-pocket maximum for the plan.