The Self-Insurer December 2023 Digital Edition by The Self-Insurer Magazine

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A S I P C P U B L I C AT I O N

Counting Comorbidities With chronic conditions driving claims, what can be done to better manage patients with multiple health issues?

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TABLE OF CONTENTS

DECEMBER 2023 VOL 182

W W W. S I P C O N L I N E . N E T

F E AT U R E S 4

COUNTING COMORBIDITIES:WITH CHRONIC CONDITIONS DRIVING CLAIMS, WHAT CAN BE DONE TO BETTER MANAGE PATIENTS WITH MULTIPLE HEALTH ISSUES?

By Bruce Shutan

HOSPITAL AND HEALTH SYSTEM RISK PREVENTION STRATEGIES SUPPORT EMPLOYER RISK MANAGEMENT

By Laura Carabello

ARTICLES 29

MEDICAL STOP-LOSS GROUP CAPTIVES FILLING COVERAGE GAPS

THE SELF-INSURED HEALTH PLAN COMPLIANCE CLOCK COUNTS DOWN FOR 2023

SIIA ADVOCACY UPDATE: NY EXTENDS PROTECTIONS FOR GRANDFATHERED SMALL GROUP STOP-LOSS CONTRACTS

NEWS FROM SIIA MEMBERS

DOL SETTLEMENT PROVIDES COMPLIANCE INSIGHT FOR CROSS PLAN OFFSET APPROACH

NEW MEMBERS

SIIA RELEASES WHITE PAPER ON ERISA PREEMPTION

EVENTS

The Self-Insurer (ISSN 10913815) is published monthly by Self-Insurers’ Publishing Corp. (SIPC). Postmaster: Send address changes to The Self-Insurer Editorial and Advertising Office, P.O. Box 1237, Simpsonville, SC 29681, (888) 394-5688 PUBLISHING DIRECTOR Bryan Irland, SENIOR WRITER Bruce Shutan, CONTRIBUTING EDITORS Mike Ferguson, Jennifer Ivy and Ryan Work, PRESIDENT/CEO Erica M. Massey, CFO Grace Chen

DECEMBER 2023

F E AT U R E

Counting Comorbidities With chronic conditions driving claims, what can be done to better manage patients with multiple health issues?

Written By Bruce Shutan

hronic illnesses are obviously top of mind at a time when twothirds of the U.S. population is overweight, and the nation’s obesity epidemic has triggered hypertension, diabetes and heart disease. But that’s just the tip of a much larger iceberg for self-insured employers. Over the past four years, for example, 81% of Sun Life claims of $2 million or higher involved comorbidities and 55% of claimants had more than one comorbidity. With the exception of 2020 when pandemic lockdowns restricted access to medical care beyond treating COVID-19, those claims have steadily increased. The carrier’s most commonly reported condition was respiratory disease, while others included congenital anomalies, newborn, cardiovascular and neurological diseases, malignant neoplasm, gastrointestinal abdominal disorder, leukemia, lymphoma, multiple myeloma and transplants.

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Counting Comorbidities

“All high-cost claimants are going to have some kind of comorbidity,” according to Kimberlee Langford, vice president of clinical services and director of business development for Specialty Care Management.

approach. That will keep patients who are juggling multiple conditions out of the hospital and delay or avoid dialysis which, if it’s deemed necessary, she suggests should be done at home for better outcomes at a lower cost.

Kimberlee Langford

Citing diabetes as a key culprit that affects 80% to 90% of her cases, she explains that it drives high blood pressure, high cholesterol, atherosclerosis, coronary artery disease, cancer and fatty liver. It also destroys the liver, eyes, nerves and kidneys, she adds. While there’s a fair share of high-cost claims linked to premature births and hemophilia that are single episodes or illnesses, the vast majority of U.S. adult patients have some sort of comorbidity and typically more than one when they’re either in the hospital or undergoing some high-dollar treatment. So says Stacy Borans, M.D., founder and chief medical officer of Advanced Medical Strategies. Usual suspects include obesity, which she says can predispose people to multiple chronic illnesses, diabetes, hypertension, high blood pressure, high cholesterol, hyperlipidemia, asthma and arthritis, which is occurring in younger people. Tobacco smoking also needs to be considered as a comorbid condition, she argues, since it can trigger chronic obstructive pulmonary disease, asthma and bronchitis and is a huge risk factor for heart disease. The underlining challenge of comorbid claims is that there may be issues that are hidden from view. Chronic kidney disease (CKD) is a great example of how there’s a lot more underneath a high-cost claim. “It’s actually our No. 3, and it’s our biggest laser, too,” Collier reports. “It’s an issue that the entire industry struggles with… Most individuals with kidney disease don’t know they haven’t until very late stage and often end up in the ER as part of an acute event.” The goal is to manage all of the comorbidities such as hypertension, food choices and weight gain, medication, etc., as part of a very targeted or methodical Stacy Borans, M.D.

The fact is that serious health problems can have a cascading effect in today’s chronically ill

“Having rheumatoid arthritis doesn’t preclude you from, say, having hypertension, nor does it preclude you from getting a stroke or cancer,” environment.

explains David A. Galardi, Pharm.D., chief commercial officer for Paydhealth, LLC, which is why so many working Americans are treated for multiple conditions. Describing diabetes cases that spring into CKD, hypertension and atherosclerotic disease, among others, as “the worst from a financial perspective,” he notes that 10 disease groups drive comorbid conditions. Many of them are circulatory in nature, such as stroke, heart disease and CKD, as well as cancer, varying types of diabetes, respiratory illnesses that include asthma, bronchitis and COPD, cirrhosis of the liver and neurologic conditions. DECEMBER 2023

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Counting Comorbidities With so many of these conditions swirling around, self-insured health plans are often faced with polypharmacy challenges. Someone with comorbidities typically is on between five and eight prescription drugs, Galardi notes, “and then if you add the fact that they may be treated for a specialty condition, they may be on multiple specialty drugs which, depending on the reference point, they are easily going to exceed, $50,000 to $60,000 a year on the low end of costs.”

risk solutions for Sun Life, says individuals who have both medical and mental health issues cost two to three times those who just have a medical issue, which makes treatment more complex and lengthens care paths.

Health plan members who fit this description “will have exceedingly high out-of-pocket costs, even with insurance,” says Galardi, whose firm helps them reduce their spend through patient-assistance programs and other resources. The trouble with traditional fee-for-service medicine, he says, is that the higher the costs, the less inclined patients will be to pursue medical treatment or adhere to their drug regimen.

that they’re genetic where folks say,

The stigma associated with mental health can also seep into physical problems. Amid efforts to turn around diabetes, Langford laments all the body shaming that goes on. “We tend to think, ‘well, that person has no self-control, they have no willpower.’ Willpower is only going to carry you so far… When you look at especially these kinds of disease states, it’s not so much David Galardi

‘well, my mamma had diabetes. My grandmother had diabetes.’ It’s not a family thing. It’s a table thing” – as in kitchen table. But it’s also “a burden thing.” She explains further: Most people in the U.S. start out by grabbing a cup of coffee, muffin or bagel – huffing and puffing their way through a frantic work day until they’re out of energy. Exhausted, they often reach for another cup of coffee or soda and maybe something out of the vending machine because all they had was carbs in the morning. Then at lunchtime, they may pick up fast food that’s cheap and easy. By 5 p.m., their fuel tank must be refilled with more food and beverages to help motivate them for shopping, running errands, cooking, going to the gym, bathing and helping kids with homework. But they also may be tempted to microwave a Lean Cuisine or Stouffer’s frozen dinner rather than eat fresh. FOCUSING ON BEHAVIORAL MODIFICATION

Jen Collier

One overlooked category is behavioral health. Jennifer Collier, president of health and

“At the end of the day,” Galardi believes, “it comes down to really one thing – and that is behavioral modification… In order to change behaviors, you actually have to understand the psyche of the individual. Programs that are generally out there today are, for the most part, fairly poor at changing behavior. They’re very good at getting people treated, but that doesn’t necessarily mitigate costs.” DECEMBER 2023

Counting Comorbidities

What contributes to the most expensive claims If we narrow the focus even further to the most expensive claims, those that reach $3M or more, several risk factors are often contributing to the high cost. In 2022, we had 18 members with claims over $3M. Of these 18 members, 16 of them had a comorbidity; the only two without

comorbidities were those with a primary diagnosis of Orthopedic/musculoskeletal disorders. Below you will see the combination of factors that contributed to the cost for each individual. The individuals are categorized based on their primary diagnosis.

Newborn/Infant Care and Congenital Anomaly Total spend Hospital stays $6.5M $3.5M $3.5M $3.4M $3.1M

• • • • •

Comorbidities

• • • • •

High-cost drugs

Complicated surgeries

•

• • • •

Cardiovascular Total spend Hospital stays $4.3M $4.2M $3.7M $3.2M

• • • •

Comorbidities

• • • •

High-cost drugs

Complicated surgeries

•

• • • •

Malignant Neoplasm Total spend Hospital stays $4.0M

•

Comorbidities

•

High-cost drugs

Complicated surgeries

•

Orthopedics/Musculoskeletal Total spend Hospital stays

Comorbidities

Complicated surgeries

• •

$4.5M $3.3M

High-cost drugs

•

Other conditions (diseases of the blood, respiratory, physician treatment, burns, fluid disorder) Total spend Hospital stays $4.6M $4.2M $3.8M $3.6M $3.6M $3.5M

• • • • • •

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Comorbidities

• • • • • •

High-cost drugs

• • • • •

Complicated surgeries

•

Counting Comorbidities Behavior change is predicated upon guiding health plan members on the many choices they face, Langford observes. “We have members all the time who are reversing diabetes, getting off of meds, losing weight, quitting drinking, quitting smoking,” she reports. “It’s not because we get them to do anything. It’s because we turn on a light to help them see where they are. Most people are walking around blindfolded, and they’re walking straight off a cliff. And the problem is they can’t see it. But once we can open their eyes, and they see how close they are to the cliff, chances are they’re going to figure out how to turn it around.” Several dramatic cases come to mind for Langford. One involved a member with “weeping” legs, which produce fluid from swelling or a wound. She had become overweight, as well as developed congestive heart failure and diabetes for which two different injectables and two different medications were needed. After drawing a metabolic panel, which not all internists keep a close enough watch on, her kidney function was found to be functioning at just 17%. So, a nephrologist was brought in and the patient started routinely tracking her blood sugar in relation to meals and working with a physical therapist to develop a safe exercise program. Her kidney function jumped to 34%.

“We have several members now getting off of their meds, and they’re reversing diabetes and stages of kidney disease in two or three months,” she reports. Another member who had gone in for a total hip replacement pre-op appointment raised a red flag when her blood pressure was 220 over 180. Fearing she was symptomatic of a stroke, an extra blood pressure pill was prescribed, which lowered her blood pressure and avoided a stroke. A follow-up visit revealed that she had an undiagnosed kidney disease. But after a very impactful intervention, the member became highly engaged and was on the road to better health.

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Counting Comorbidities In addition, a third member’s planned total knee replacement surgery had to be cancelled when it was discovered that his prostate was blocking the flow of urine, which was destroying his kidneys. The grim diagnosis: he was close to renal failure with stage-five kidney disease. Dialysis seemed inevitable. But after working on his blood pressure and prostate issues, including self-catheterization, his kidney function had improved within months, and about eight years later he had not progressed to dialysis. “His words to me were, ‘I thought my life was over. And I can’t believe this. I’m going to see my grandkids graduate now,’” she recalls. Another point Galardi makes is that network environments must be conducive to treating the whole person. If someone has colorectal cancer, he notes, as many as 10 to 15 types of physicians will be involved in their care, which should be set up as episodic so that the payment is actually a case rate based on the disease and normal course of that condition. His suggestion is that more risk share needs to be placed in the hands of providers and patients, with the latter doing a better job of following the former’s instructions, which also need to be more thoughtful. “We’re excellent at high-dollar treatment for the disease once it occurs, and what we’re really terrible at is putting dollars into

prevention,” Borans says, calling the investment “miniscule.” Paying for routine screenings and physicals, wellness programs, behavioral health support, close follow-up visits and case-management strategies is much less expensive than the resulting diseases that arise from comorbid conditions, she adds. In short, they help avoid heart attacks, end-stage renal disease, cirrhosis of the liver and other major health problems that become high-cost claims. Softer financial incentives such as tying wellness program participation to a reduced monthly premium are proving more effective at helping change behavior than direct incentives involving cash, she explains. There also are social factors to consider. For example, a single working mother who is diabetic, hypertensive or overweight may need to line up childcare so she can get to the gym. Also, an alcoholic may not be able to attend an AA meeting if there’s not one in their neighborhood and they don’t have any transportation lined up. TOP 10 COMORBIDITIES FOR SUN LIFE CLAIMANTS

1 2 3 4 5 6 7 8 9 10

Respiratory Disease/Disorder Physician treatment/not elsewhere categorized Congenital Anomaly-structural Newborn/infant/care disease disorder Cardiovascular Disease/Disorder Neurological Disease/Disorder Malignant neoplasm Gastrointestinal Abdominal Leukemia, Lymphoma, Multiple Myeloma Transplant

Between 2018-2022, and specific to $2M+ claimants: 81% (189 of 233) had comorbidities 2 million + Benefit Year Claimants (1+ Comorbidities) 2018 27 2019 37 2020 32 2021 39 2022 53

2 million + Claimants (total) 30 44 40 49 70

Source: Sun Life

DECEMBER 2023

Counting Comorbidities A SICKENING TREND

Looking ahead, Langford is concerned about a significant uptick in younger people developing completely preventable kidney disease and going on dialysis largely because of what has become known as “diabesity,” which as the name suggests is driven by diabetes and obesity. “We’re seeing it because of the comorbid conditions,” she explains, adding that dialysis now accounts for 1% of the nation’s health care budget and is a huge burden for the U.S. economy. The scariest trend of all to her is the younger population having heart attacks, as well as developing fatty liver disease and liver failure. “They’re working on a form of dialysis for liver disease that’s going to be an expensive little procedure” she says. “Diabetes is a huge driver of cirrhosis of the liver and a huge comorbid condition. You see it with the same things that drive kidney disease.” Comorbidity factors will continue to mount along with the cost burden, Galardi says. As a result, more therapies are coming to market – not just drug, gene and cell, but also surgical interventions that are available. While the medical home model has been chased

for decades, he says the reality is that that will work in some markets but not others. “If we can incentivize local contracted networks and local interventions for the sickest of our populations, whether they’re an advocate like us, doctor, nurse, pharmacist, etc., that’s taking care of them, then that’s actually what’s going to lower costs,” he notes.

Bruce Shutan is a Portland, Oregon-based freelance writer who has closely covered the employee benefits industry for more than 35 years.

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F E AT U R E

Hospital and Health System Risk Prevention Strategies Support Employer Risk Management Written By Laura Carabello

s US employers face the largest increase in health insurance costs in a decade, with reports that expenditures are expected to jump 5.4% to 8.5% in 2024, there is a lot of fingerpointing. Some blame medical inflation and labor shortages while others fault the soaring demand for costly weight-loss drugs and wider availability of high-priced gene therapies. The drug industry (www. phrma.org) contends that there is a myopic focus on drug spending, pointing to data that shows roughly 30% of every dollar spent on healthcare in the United States can be attributed to hospitals and their increased role in driving costs for patients and the broader healthcare system.

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Risk Prevention Strategies Employers are often blindsided by the cost of hospital stays, a line item which often impacts many direct contracting arrangements. One factor that may never be considered is the absence or presence of a hospital or health system’s risk strategy program, a plan that not only affects the cost of care, but also the health and well-being of the employee. The National Institutes of Health (NIH) report that preventable medical errors and adverse events in US hospitals are well-documented with estimated costs that total $17 billion annually. According to a study published in the New England Journal of Medicine, nearly 1 in 4 patients who are admitted to hospitals in the U.S. will experience harm. These bleak findings underscore that despite decades of effort, U.S. hospitals still have a long way to go to improve patient safety. The study pointed to the most common adverse events related to medications given in the hospital. Surgery and other procedures followed while the study authors cited “patientcare events” -- falls and bedsores, both of which are considered preventable. PREVENTABLE ADVERSE EVENTS

It may come as a surprise that falls comprise the largest category of preventable adverse events in hospitals and the associated per-patient costs are estimated to range from $351 to $13, 616. This is undoubtedly an eyeopener for employers and Plan Sponsors since until now, there has been insufficient research on the costs of patient falls in healthcare systems, a leading source of non-reimbursable adverse events.

Falls have been identified by the Centers for Medicare and Medicaid Services (CMS) as a preventable event that should never occur, and hospitals will not receive reimbursement for treating injuries that result from falls. Falls are a pervasive and expensive patient safety issue across the continuum of healthcare settings, with patient falls being the single largest category of reported incidents in hospitals. Thanks to study published in the Journal of the American Medical Association, the cost of these events is now documented, representing a clinical and financial burden to healthcare systems and the employers that contract with these providers. The good news is that this cost-benefit analysis also includes the potential savings of implementing an evidence-based fall prevention program.

DECEMBER 2023

Risk Prevention Strategies

ACCORDING TO A REPORT PREPARED BY THE RAND CORPORATION FOR THE AGENCY FOR HEALTHCARE RESEARCH AND QUALITY (WWW.AHRQ.ORG):

It is estimated that approximately 700,000 to 1 million patients fall in U.S. hospitals each year, 30% to 35% of patients sustain an injury because of a fall, and a staggering 11,000 patient falls in hospitals each year are fatal. Total costs to the U.S. hospital system associated with fall incidents are estimated at more than $10 billion annually, and primarily include a combination of non-reimbursable clinical costs, litigation costs, increases in hospital liability insurance rates, and increases in workers' compensation insurance rates resulting from nursing and other hospital staff being injured assisting patients with falls. NIH sources advise that although hospital falls have been decreasing over the past several years, they remain a significant problem.

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Depend on Sun Life to help you manage risk and help your employees live healthier lives By supporting people in the moments that matter, we can improve health outcomes and help employers manage costs. For over 40 years, self-funded employers have trusted Sun Life to help them manage financial risk. But we know that behind every claim is a person facing a health challenge and we are ready to do more to help people navigate complicated healthcare decisions and achieve better health outcomes. Sun Life now offers care navigation and health advocacy services through Health Navigator, to help your employees and their families get the right care at the right time – and help you save money. Let us support you with innovative health and risk solutions for your business. It is time to rethink what you expect from your stop-loss partner. Ask your Sun Life Stop-Loss Specialist about what is new at Sun Life. The content on this page is not approved for use in New Mexico. For current financial ratings of underwriting companies by independent rating agencies, visit our corporate website at www.sunlife.com. For more information about Sun Life products, visit www.sunlife.com/us. Stop-Loss policies are underwritten by Sun Life Assurance Company of Canada (Wellesley Hills, MA) in all states except New York, under Policy Form Series 07-SL REV 7-12. In New York, Stop-Loss policies are underwritten by Sun Life and Health Insurance Company (U.S.) (Lansing, MI) under Policy Form Series 07-NYSL REV 7-12. Product offerings may not be available in all states and may vary depending on state laws and regulations. © 2023 Sun Life Assurance Company of Canada, Wellesley Hills, MA 02481. All rights reserved. Sun Life and the globe symbol are trademarks of Sun Life Assurance Company of Canada. Visit us at www.sunlife.com/us. BRAD-6503-y SLPC 29427 01/22 (exp. 01/24)

Risk Prevention Strategies EMPLOYERS TAKE ACTION

Given this bleak report, AON, PLC, a leading global professional services firm, announced a new initiative earlier this year to reduce falls and injuries in hospitals and healthcare facilities. They undertook collaboration with HD Nursing, an evidencebased safety solutions company providing programs and services to support fall prevention and pressure injury prevention. The program is designed to drive improved clinical and financial outcomes by introducing fall

prevention programs to hospitals and other healthcare providers within Aon’s healthcare client portfolio. “This collaboration will benefit many more hospitals and healthcare providers by successfully implementing the HD Falls Prevention Program and leveraging our research, data, artificial intelligence, and clinical science,” says Dr. Amy Hester, FAAN, PhD, RN, BC, chairwoman and CEO, HD Nursing. “More importantly, Dr. Amy Hester hospitalized patients will be safer as a result. These tech-supported programs are able to identify each patient’s fall risk factors, develop individualized prevention plans and consistently implement the plans through staff and patient engagement. In addition to reducing patient falls, our solution has proven to reduce injuries arising from falls.”

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Risk Prevention Strategies

The American Society for Healthcare Risk Management (www.ASHRM.org), the leading professional membership group for healthcare risk professionals, reports that falls account for 1 in 12 closed claims. In fact, in their analysis of Cause of Medical Malpractice Claims, slip/falls are a common cause of loss, accounting for about 6% of all claims within their database, but average approximately $80,000 in idemnity and defense costs.

ASHRM advises stakeholders to know the fundamentals of how to evaluate their current falls prevention program and take a proactive role in risk mitigation that will help to avoid the common pitfalls that lead to increased risk exposure.

DECEMBER 2023

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Risk Prevention Strategies “It is our experience that these events are not only costly but may also translate into employee absenteeism and diminished job performance since falls often injure staff in addition to patients,”

“The key for employers is to ask if the hospital or health system has an evidence-based fall prevention program in place.”

says Dr. Hester.

She points out that the HD Falls Program utilizes the HesterDavis Scale© (HDS©), a highly effective, validated assessment tool designed to accurately identify patients most likely to fall and document their specific modifiable fall risk factors. Dr. Hester continues, “The HDS© risk factors are mapped and linked to specific interventions in our population specific care plans that clinical evidence indicates are best suited to mitigate those risk factors. Our tools are integrated into the hospital’s EHR system to drive improved outcomes by individualizing patient care, backed

Tim Davidson

by our sustainability team and services that drive effective implementation and sustainability of the program year over year.” Tim Davidson, ARM, CHSP, CHCM, managing consultant, Aon Global Risk Consulting (AGRC)

DECEMBER 2023

Risk Prevention Strategies and AGRC Healthcare Consulting Leader. further explains, “The collaboration with HD Nursing is another great example of the work Aon’s global risk consulting team does every day to ensure clients are better informed, better advised and able to make better decisions. It exemplifies our continued focus on bringing solutions to help our healthcare clients reduce risk and protect their patients and their people. Introducing our healthcare clients to HD Nursing’s high-quality solutions that improve the quality of patient care, reduce workplace injury and mitigate liability and litigation costs helps achieve this goal.”

management of chronic conditions, and cost containment. Northwell Direct’s approach stands out due to its ability to deploy clinical programs that focus on proactive care and cost-effective interventions.” Stefanizzi says that by leveraging its extensive network and innovative stop-loss relationships, Northwell Direct can deliver better outcomes while saving money for employers.

“The key to an effective risk strategy program is a dynamic blend of datadriven insights, preventive healthcare measures, and strong provider partnerships like Northwell Direct, ensuring healthier employees and bottom-line savings.” THE ROLE OF CAPTIVES

Nick Stephanizzi, CEO

From the hospital perspective, Nick Stefanizzi, CEO Northwell Direct says a robust healthcare provider strategy for risk prevention and employer risk management is essential in today’s complex healthcare landscape. “A successful risk strategy program should prioritize preventive care, efficient

Aon’s Elizabeth C. Steinman, CPA, ARM, CPCU, FCI, managing director, Risk Finance & Captive Consulting, Commercial Risk Solutions, shares this information, “Part of the benefit of creating a Captive Grant program is to facilitate the use of funds that are reflective of how the Captive is doing. If the Captive is performing well, part of the “savings” can be allocated to further protect the captive by investing in loss control and prevention programs, enabling even better financial performance for the captive. Example grant programs could include: Safe Patient Handling Programs, Patient Fall Prevention, or Workplace Violence prevention Programs.” She explains that healthcare captives have become an increasingly popular tool for hospital systems and healthcare facilities to manage their risk and reduce their insurance costs. Healthcare facilities want to have more control over their insurance costs and their risk management strategies. Expenses for a captive are much lower than traditional insurance carrier costs and insurance carrier profit margins can be avoided. Also, owning a captive insurance company allows access to a wider range of insurance markets than the health system can access directly itself.

DECEMBER 2023

Risk Prevention Strategies “Healthcare facilities want more flexibility regarding the types of insurance coverage they can purchase,” says Steinman. “For example, a healthcare captive can offer coverage for non-traditional risks, such as cyber-attacks or environmental liabilities, where traditional insurance policies may not cover such risks. This allows healthcare facilities to tailor their insurance coverage to efficiently fit their specific needs.” A captive can also act as a smoothing mechanism for the impact of changing insurance market conditions and provide more budgetary certainty for the cost of financing retentions internally.

“As a natural byproduct of taking on more risk, the primary function of the risk management department to lower the number of high severity losses, becomes even more important,” she continues. “Once a captive

is formed, healthcare systems can take a more proactive approach to risk management. The captive becomes a centralized repository for risk management, loss control and risk mitigation data across all aspects of healthcare facility’s operations.”

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She says that medical stop loss remains a popular line of business for those organizations that are self-insured for their employee health plan and want to take on a portion or all the medical stop loss coverage they currently buy in the market. “Many healthcare systems have found significant cost savings by retaining this line of business, says Steinman. “Also, this shorttailed line of business offers diversification for the staple longtailed lines of business. Captives work best when the risks are diversified thereby creating a facility that can respond when an unexpectedly large claim arises by accessing the funds available in the captive from the varied mix of risks.”

Risk Prevention Strategies

“The risk strategy program should include clear metrics that not only outline responsibilities and expectations of both parties, but also allow for ongoing measurement of results in the direct contract agreement,” says Goldfarb. “It absolutely should impact stop loss David Goldfarb, CEO coverage. Stop loss should look at the In addition to healthcare captives, risk reduction program as a vehicle that Steinman points out that there are several other innovative reduces overall exposure/liability and risk management tools that healthcare facilities are exploring: ultimately reduces stop loss premiums.” “For example, some healthcare facilities are partnering with insurance companies to create bundled insurance products that combine traditional insurance coverage with risk management services such as data analytics and loss prevention. Others are exploring the use of alternative risk transfer mechanisms, such as insurance-linked securities (ILS), which allow investors to invest in insurance risks in exchange for a share of the premiums.”

IMPACT ON DIRECT

CONTRACTING, STOP LOSS

David Goldfarb, founder and CEO, DSG Benefits Group, LLC, asserts that employers must absolutely insist upon a risk strategy when entering any type of direct contract with health systems/ hospitals and providers.

When structured correctly, he says risk management programs deliver ROI, adding, “The easy answer is that the provider can see fewer patients, and therefore spend more time with each patient. The employer can steer employees to the providers that exhibit the best outcomes. It also can remove provider contracts and associated ‘negotiated contracted rates’ from the equation, potentially allowing providers to get paid more while at the same time offering their services at a lower net cost to employers/patients.” Goldfarb sees the initiative stemming from the broker/consultant side after having conversations with health systems/hospitals or larger provider groups that have the right concentration of providers in specific geographic areas. AHRQ recommends that during the course of a hospital’s fall prevention improvement effort and on an ongoing basis, they should regularly assess fall rates and fall prevention practices. They recommend regular monitoring of: (1) an outcome (such as falls per 1,000 occupied bed days), (2) at least one or two care processes (e.g., assessment of fall risk factors and actions taken to reduce fall risk), and (3) key aspects of the infrastructure to support best practices (e.g., checking for interdisciplinary participation in Implementation Team).

DECEMBER 2023

Risk Prevention Strategies Joe Dore, president, USBenefits Insurance Services, LLC, advises, “Employers must treat this type of product strategically and align with partners who share their immediate and long-term objectives. It’s important for the employer to fully vet their partners and service providers to find those that best align with their benefits and financial objectives, as well as synergize as a team. Not all partners or service providers are equal nor serve in the employer’s best interest.” Dore says employer considerations should include, but not be limited to:

Source: 2023 AHRQ. https:// www.ahrq.gov/patient-safety/ settings/hospital/fall-prevention/ toolkit/measure-fall-rates.html Dr. Hester notes, “This is exactly what we advise to our hospital and health system clients: how to predict who is at risk, care planning to prevent falls and injury and service to sustain their gains over time.” She adds that by providing these organizations with an individualized falls management program, comprised of all the evidence-based tools and services needed to reduce patient falls and fall with injury across the continuum of care, they are empowered to effectively address the growing costs associated with falls, facility needs to meet regulatory requirements, in addition to requirements for Magnet™ and other designations. 26

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•

Implementing a risk management program,

•

Not getting caught in the lowprice trap,

•

Exercising risk transfer strategies, and

•

Understanding the differences between mitigating vs managing claims.

Joe Dore

“Any employer contemplating excess coverage should not be considering how much their immediate savings will be as compared to a fully insured / first dollar coverage,” says Dore. “Excess coverage is a long-term play, and if done correctly, the employer will experience multiple benefits. While cost savings are the ultimate goal, it must be treated like an asset or investment of the company rather than transactional.” Simply looking for the cheapest upfront cost does not necessarily translate to savings. “For self-insurance to be effective, the employer must be engaged and accountable, because like any investment, there’s risk,” he concludes. “Treat your insurance like an investment with ROI expectations. This investment is inclusive of all parties involved, especially relating to cost containment efforts through vendors and provider contractual agreements, to ensure proper alignment with the employer’s Plan objectives.” The ideal self-funded employer wants: 1.

Control of their insurance

Cash flow benefits

Positive outcomes

Risk Prevention Strategies Additional guidance comes from Rob Gelb, Chief Executive Officer,

“An effective risk strategy starts and accelerates by identifying, evaluating and prioritizing risks early and incorporating risk prevention into everything we do for the employer. Since our inception, our solutions have been built around this ideology.” Vālenz® Health,

Rob Gelb

Before engaging with a customer, their team uses data to pinpoint opportunities for risk mitigation. “We ensure plan design supports aggressive cost containment, which must align with stop-loss underwriting,” continues Gelb. “Employers should demand a partner who is transparent, shares risk through guaranteed payment options and negotiates market sensitive repricing with providers that is fair and defensible. We believe systematic risk management reduces costs, improves quality, and ensures optimal member experiences.”

DECEMBER 2023

Risk Prevention Strategies SOURCES https://jamanetwork.com/journals/jama-health-forum/fullarticle/2800748 https://www.ashrm.org/mitigating-your-risk-exposure-fall-events https://www.ahrq.gov/patient-safety/settings/hospital/fall-prevention/toolkit/measure-fall-rates.html Nearly 1 in 4 U.S. hospitalized patients experience harmful events, study finds (nbcnews.com) https://www.nejm.org/doi/full/10.1056/NEJMsa2206117 https://www.ncbi.nlm.nih.gov/books/NBK225187/#:~:text=Based%20on%20extrapolation%20to%20 all,events%20to%20be%20%2417%20billion. https://psnet.ahrq.gov/issue/social-cost-adverse-medical-events-and-what-we-can-do-about-it https://www.prnewswire.com/news-releases/hd-nursing-collaborates-with-aon-to-help-reduce-falls-andrelated-injuries-for-us-hospital-market-301491184.html https://phrma.org/Blog/New-report-shows-hospitals-mark-up-medicine-prices-500-percent?utm_ campaign=2023-q3-fed-v6&utm_medium=pai_srh_cpc-ggl-adf&utm_source=ggl&utm_content=clk-patv6-v6-v6-all-pai_srh_cpc-ggl-adf-HospitalsReportSearchWCNational2-oth-v6-v6-v6-lrm-soc_txt-v6-vrbadf&gclid=EAIaIQobChMIwfvDmPCbggMVskByCh2N6wFJEAMYASAAEgIF2vD_BwE https://finance.yahoo.com/news/employers-expect-healthcare-costs-spike-190026883. html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_si g=AQAAAEB4dPjODlteYw9IgTXYaM2s2nnjwJl8YWgAl6gA8XXSTLhklpYIeT8-nUq-xNxMwSy QWKm26fRnlYahFsR3N3JUhQx58TGQ5o3ssQrxfmAzwYPTEU9irQNQpALA8ZUCE4ukaMp_ XKuxM85AJheDxjhsTgpXD2TVjrrnr95Datmr#:~:text=Citing%20a%20recent%20Mercer%20report,of%20 high%2Dpriced%20gene%20therapies.

Laura Carabello holds a degree in Journalism from the Newhouse School of Communications at Syracuse University, is a recognized expert in medical travel, and is a widely published writer on healthcare issues. She is a Principal at CPR Strategic Marketing Communications. www.cpronline.com

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MEDICAL STOP-LOSS GROUP CAPTIVES FILLING COVERAGE GAPS

Written By Caroline McDonald

he rising number of medical stop-loss group captive formations has not been surprising to captive insurance experts. After all, 77 % of respondents of SIIA’s annual captive insurance survey selected employee benefits/medical stop-loss as the area in which they have seen the most growth this past year. What’s more, 43.2 % of respondents reported group captives as the type of captive most formed in 2022. While this trend has been building for the past decade, industry experts weren’t expecting the sudden growth they’re seeing.

“Right now, we’re seeing higher interest than ever. I have more submissions than I ever have,” said Don McCully, president at Medical Captive

Underwriters in Chicago.

DECEMBER 2023

“They are very popular and that’s what I spend 99% of my time selling,” he said, adding that they are all medical stop-loss group captives, with employers as the plan sponsors, “and they unbundle their dollar completely.” McCully noted, “I’ve seen more companies entering the space than I was aware were participants in the marketplace. To see this explosion is fantastic.” WHY THE SURGE IN FORMATIONS?

Initially, the reason for interest in stop-loss captives, McCully said, “was passage of the Affordable Care Act, because that said captives would be regulated a certain way unless they went to self-funding.” Also feeding the market is the fact that “you don’t have to have your own captive to enter this space,” he said. “Early naysayers talked about how expensive it was to own a captive or how risky it was to enter a group captive.” Now, however, “neither of those arguments are being thrown about.” Another trend he is seeing is larger groups forming captives. “When I started this company in 2015, our average group size was 117 employees in the plan and now the average is about 150,” McCully said.

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About 20-30% of his groups are nonprofit federally qualified healthcare corporations or straight 501c3 “doing some form of advocacy with state and federal grants helping them out,” he said. What’s more, “The market is ripe for even more growth,” he said. There are enough employers out there that we can have more growth if we manage our programs right and message properly.” The types of organizations forming them also run the gamut. “We’ve got IT, we’ve got wholesaling, carpet cleaning. The term medical stop-loss means we are covering all employers,” he said.

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RISING HEALTHCARE COSTS

Josh Bicknell, Director of captive initiatives at Captive Insurance Solutions noted that a large part of this growth is the rising cost of healthcare insurance and related lines. This is happening, he said, “because of the traditional carriers and the prices they are passing on to companies of all sizes.” While it’s believed that small companies are bearing the brunt of this, it is also impacting larger companies including Fortune 500 companies, he said, which ultimately impacts

“If you ask employees what they are seeing with their healthcare insurance rates, 10 out of 10 will tell you they have really gone up,” Bicknell said.

employees.

He added, “When you talk to the risk management people within those companies, you understand what they are being faced with, what their brokers are coming back to them with in terms of premium offering, and the fact that the increases are outrageous.” Feeding into that are a variety of issues. One of which is the country’s aging population. “You will have Medicare trying to offset 32

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the price of affordable healthcare for that population, and what that does to government rates and how that translates into commercial rates,” Bicknell said. “If those commercial rates go up, they will affect other healthcare rates.”

“Even a company with a good loss history can be hit with higher rates. It’s not like the insurer can just drop somebody if they have a bad loss history.”

There are no winners here, he said.

“then you will see some healthcare providers drop certain industry lines or certain companies with catastrophic levels of loss.” If there is a catastrophic loss history, he added,

WHY GROUP CAPTIVES?

Joe Parilli, senior vice president at Captive Resources observed, “We have been doing medical stop-loss captives for 14 years now, but in the last five years they have become more and more popular and the topic of conversation,” he said. The reason is that organizations won’t be able to absorb the costs they will be seeing in the traditional marketplace. “There is no help for them regarding control of total spend, and the game of 15% increase— somebody goes to market and tries to get it down to a 9 or 10 and it starts at 20 the next year. It’s unsustainable.” Group captives have increasingly been recognized for giving organizations the ability to partner with like-minded companies. “Not like-minded because they’re in the same industry, but in the sense that they are employers, CFOs, CEOs, presidents, high level HR directors who are tired of the status quo,” Parilli said. This gives companies the opportunity to partner with like-minded

“They understand innovative ways to control spend so they’re not passing it down to their employees,” he said. groups.

PROTECTING EMPLOYEE BENEFITS

“Where group captives have gained their popularity is not just the mechanism of what they are, it’s the type of people who are joining them and doing it successfully,” Parilli said.

Who is looking at these programs? The market is changing, in that traditionally self-funded or stop-loss was for companies with 100 or

“Then it was 50 or more employees, now Organizations have two options, to keep pushing costs down to employees, or to start cutting their plan. “You start cutting benefits there are some and lose the sense of the term employee benefits. The medical plan has lost the idea of the benefit,” Parilli said. consultants doing medical stop-loss “When I look at the group captives we support, that is what the CFOs and others for groups down to 15 or 20 employees,” in the company are trying to get back,” Parilli said. At the end of the day, he said, it’s unsustainable for companies to keep taking increases that they can no longer fund. “It’s already the first or second biggest line-item they have.

more employees,

Parilli said. “They want to provide their people, the end users who are vital to their businesses, something that will work for them, and they are also trying to attract new talent, so they have to be competitive in the market with that.”

DECEMBER 2023

In the case of a smaller company, “a lot of your risk may be concentrated in a small area,” Bicknell said. “If something were to happen in an established area where your operations are, you don’t have proper risk distribution. Risk distribution is a big box that you want to be able to check.”

“With risk captives and pooled captives, you can establish that distribution and participate in the benefits of captive insurance, but on a much smaller scale. You don’t have to worry about hitting millions of dollars of captive premium to do so,” Bicknell said.

This, he said, is what makes group captives so popular.

Outside of the core mechanism of the program, he said, “Captive owners are able to go out and change their plan to find better ways to control the spend that they have.” Most importantly,

“They are no longer beholden to the insurance companies, they are actually taking control of what they are doing.”

he added,

When people see what’s happening in the traditional marketplace and understand that the captive market is no longer going to be the alternative funding mechanism, it will move to the lead funding mechanism in the next few years, in my opinion,” Parilli said.

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2023 CAPTIVE SURVEY AND TREND REPORT FINDINGS

•

Most respondents, 56.3 %, reported seeing an increase in captive interest in gap or medical stop-loss area. The 12.5% that chose “other” cited “property” most as an area with an increased interest in captive use. Next was cyber risk at 25%.

•

Respondents, 43.2% reported group captives as the most seen captives formed in 2022. Next was single parent at 35.1%.

•

Most Respondents (77%) selected Employee Benefits/Medical Stop-Loss as the area in which they have seen the most growth this past year. Interestingly, no respondents selected enterprise risk.

•

Price inflation was reported as the most noticed trend in 2022 (34%). The most common response cited by the 4% of respondents that selected “other” was a reduction in appetite for certain risks.

DECEMBER 2023

Unpacking three of the top cost drivers of large claims Let’s examine the factors behind three impactful high-dollar claim categories for Stop Loss: neonates, cancer and COVID-19. Stop Loss insurance plays a crucial role in helping to mitigate the financial impact of the associated costs for self-funded employers.

Neonatal innovations save lives, but increase costs

Cancer diagnoses increase financial risk

COVID-19 made its mark on large claims

Newborns with complex medical needs incur high costs due to specialized care and treatment. Fortunately, there have been many life-saving innovations like fetal monitoring, precise fluid delivery, ventilation, and specialized nurses and physicians.1 However, self-funded employers need proper protection from these often-unanticipated costs.

A cancer diagnosis may involve expensive treatments like radiation and chemotherapy. Some patients also try cell therapies as alternative treatments, with varying degrees of success. Stop Loss can help protect groups facing these high-dollar claims.

Severe COVID-19 cases can lead to extended hospital stays and intensive care, causing rapid cost escalation. Vaccines and treatment protocols have helped to improve outcomes, but a new variant may arise and cause a spike in cases and may be especially harmful to those at a higher risk of infection and severe illness. Stop Loss can help protect against the financial risk associated with these claims.

Delivering the right Stop Loss solutions to self-funded clients Stop Loss coverage reflects what’s happening with hospitals, medical technology, and the pharmaceutical industry. At HM Insurance Group (HM), we know that life is not without risk — and that catastrophic claims can arise unexpectedly. We closely monitor trends and cost drivers to tailor Stop Loss insurance solutions for our self-funded clients. When you work with HM, you can have confidence that claims will be paid.

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Source: HM Insurance Group internal Stop Loss data and industry analyses, 2023. 1 “A Brief History of Advances in Neonatal Care,” NICU Awareness, https://www.nicuawareness.org/blog/a-brief-history-of-advancesin-neonatal-care, 2016, accessed 2023. Coverage is underwritten by HM Life Insurance Company, Pittsburgh, PA, in all states except New York under policy form series HMP-SL (08/19) or HMP-SL (06/20) or similar. In New York, coverage is underwritten by HM Life Insurance Company of New York, New York, NY, under policy form series HMP-SL (06/20) or similar. The coverage requested may not be available in all states and is subject to individual state approval.

SIIA ADVOCACY UPDATE: NY EXTENDS PROTECTIONS FOR GRANDFATHERED SMALL GROUP STOPLOSS CONTRACTS

ith support from the Self-Insurance Institute of America, Inc. (SIIA), New York Governor Kathy Hochul signed legislation in late-October to extend grandfathering for small-group stop-loss contracts in the state for an additional three years – until 2027. The passage of Assembly Bill A7083 is another recent advocacy victory for SIIA and coalition partners to protect important access to stop-loss insurance in New York State. In 2015, the New York State Legislature passed a law to redefine groups of 51-100 as “small employers,” thus prohibiting small employers from obtaining stop-loss insurance. Without the important grandfathering clause, which SIIA strongly advocated in support of, hundreds of employers from 51-100 would have lost health coverage on January 1st, 2016. Since that time, New York has passed a number of grandfathering extensions allowing for existing small-group stop-loss plans to continue. While the prior extensions allowed grandfathering through 2024, this latest law extends the protections for grandfathered small-group stop-loss plans through 2027. SIIA continues to lead legislative and regulatory activities in support of stop-loss insurance market access in New York, and in states across the country. For more information on the recent New York stop-loss legislation, or to learn more about SIIA’s state advocacy efforts, please contact Anthony M. Murrello at amurrello@siia.org DECEMBER 2023

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DOL SETTLEMENT PROVIDES COMPLIANCE INSIGHT FOR CROSS PLAN OFFSET APPROACH

Written By Alston & Bird, LLP Health Benefits Practice Team

n September 29, 2023, the U.S. Department of Labor (DOL) entered into a settlement agreement over cross-plan offsetting with EmblemHealth Inc. (Emblem). Emblem is an insurer and thirdparty administrator for group health plans. Cross-plan offsetting is a method used by insurers and third-party administrators to recover overpayments paid to a provider by reducing or eliminating payments to that same provider for another patient’s claim covered under another employer group health plan, which can be either self-funded or fully insured. DOL has previously expressed concerns with cross-plan offsetting (especially where self-funded plans are involved) because it views the process as taking assets from one plan (i.e., the overpayment) and using them to pay claims for another plan. In DOL’s view, this could trigger one or more ERISA fiduciary breaches or prohibited transactions.

DECEMBER 2023

While the concept of cross plan offsetting is simple, the legal and compliance concerns are complex. There are several nuances with cross-plan offsetting depending on how the approach is structured. There are far less issues with participating providers who presumably agree to cross-plan offsetting in their network contracts and agree to hold participants and beneficiaries harmless from any balance billing.

in the plan and summary plan description, notifying participants and beneficiaries of the practice and when claims will not be paid from the plan because of the offset.

Unresolved prohibited transaction and fiduciary issues are more pronounced where cross-plan offsetting crosses from an insured plan (where the insurer is financially responsible) to the insurer’s self-funded business (where the plan is financially responsible). In other words, the argument is that the insurer is using a self-funded plan’s assets to pay claims where the insurer would otherwise be responsible.

Cross-plan offsetting is most problematic with out-of-network providers because they have not agreed to the practice. There, if an otherwise valid claim for a participant in one plan is reduced because of overpayment based on a participant in a different plan there is a risk that the provider might balance bill the participant for the offset amount. DOL’s focus in the settlement with Emblem was this potential for balance billing.

There are also issues with claims and appeals procedures and whether a cross-plan offset is an adverse benefit determination because the plan that owed the provider for the service is paying nothing or a reduced amount. The provider is being “paid” by offsetting the overpayment from another plan. In addition, if there is cross-plan offsetting, the practice likely needs to be addressed

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DOL’s settlement with Emblem consisted of four parts: A settlement agreement, a letter to participants and beneficiaries, a notice to be posted on Emblem’s website, and a consent order. Pursuant to the settlement agreement, the consent order will only be filed with a court if Emblem breaches the settlement agreement. The settlement agreement required Emblem to: • •

•

Cease cross-plan offsetting. Remove cross-plan offsetting language from its policies, procedures and practices no later than January 1, 2024 (or for insured plans after any state required approval). Send a letter with an attached claim form to any participant affected by a cross-plan offset of $50 or more from July 16, 2015, to September 29, 2023, informing them that if they were balance billed they should contact Emblem and that they will be entitled to reimbursement of the cross-plan offset amount. Emblem must also email the letter to any participant where Emblem had an e-mail address. Post a notice on Emblem’s web portal with similar content to the letter.

The settlement agreement does allow Emblem to take reasonable steps and seek corroborating documentation that the participant was balance billed. The settlement agreement provides other relief such as requiring Emblem to notify credit reporting agencies if a participant notifies Emblem that debts for balance billed amounts appear on a participant’s credit history. DOL also required extensive ongoing reporting on Emblem’s reprocessing of claims subject to a cross-plan offset. As mentioned, the consent order attached to the settlement agreement would only be filed with a court if Emblem breaches the settlement agreement. That consent order alleges fiduciary breaches based on ERISA’s exclusive benefit requirement, prudence requirement, and requirement to act in accordance with plan documents. It further alleges prohibited transactions under three subsections of ERISA and a violation of ERISA’s requirement for reasonable claims and appeals procedures. If the consent order were filed, Emblem does not admit to those allegations but agrees “not to submit any filing” denying the allegations.

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42 THE SELF-INSURER

Strong relationships. More solutions. Partner with Nationwide® to simplify Medical Stop Loss for you and your clients. Save time and effort with easy access to experienced underwriters who offer a broad range of solutions. Our flexible plans are tailored to fit your clients’ needs and reduce future risk. Plus, claims are backed by a carrier with A+ financial ratings.* Offer coverage from a brand clients can trust. Nationwide has been in the health business for 80 years and in Medical Stop Loss for nearly 20 years. To learn why top Medical Stop Loss producers and underwriters choose Nationwide, call 1-888-674-0385 or email stoploss@nationwide.com. *A+ ranking from AM Best received 10/17/02, affirmed 12/1/22, and A+ ranking from Standard & Poor’s received 12/22/08, affirmed 4/19/22. Plans are underwritten by Nationwide Life Insurance Company, Columbus, Ohio 43215. Nationwide, the Nationwide N and Eagle, and Nationwide is on your side are service marks of Nationwide Mutual Insurance Company. © 2023 Nationwide NSV-0113AO (01/23)

The DOL press release on the settlement can be found here. https:// www.dol.gov/newsroom/releases/ebsa/ebsa20231005. The press release also contains a link to the settlement documents.

Attorneys John R. Hickman, Ashley Gillihan, Steven Mindy, Carolyn Smith, Ken Johnson, Amy Heppner, and Laurie Kirkwood In addition to this settlement with DOL, plaintiffs’ attorneys have provide the answers in this brought fiduciary breach and prohibited transaction lawsuits on behalf column. John is partner in charge of participants and beneficiaries with respect to cross-plan offsetting. of the Health Benefits Practice The results of those lawsuits have been mixed, with some involving with Alston & Bird, LLP, an issues of whether participants and beneficiaries have “standing” to Atlanta, New York, Los Angeles, bring those actions. Emblem is the first public settlement we have Charlotte, Dallas and Washington, seen with DOL on cross-plan offsetting although DOL has filed a D.C. law firm. Ashley and Steven “friend of the court” brief in one of the major cross-plan offsetting are partners in the practice, and cases brought by participants and beneficiaries. Carolyn, Ken, Amy, and Laurie are senior members in the Health This is an issue that is continuing to evolve, and fiduciaries of selfBenefits Practice. Answers are funded plans should contact their third-party administrators to see provided as general guidance if their plan engages in cross-plan offsetting and whether there are on the subjects covered in the any limits to that practice. If cross-plan offsetting is permitted, then counsel should be consulted, and further review performed to see how question and are not provided as legal advice to the questioner’s cross-plan offsetting is implemented (and any compliance concerns) situation. Any legal issues should and to ensure the practice is properly reflected in any services be reviewed by your legal counsel agreement or summary plan description. to apply the law to the particular facts of your situation. Readers are encouraged to send questions by e-mail to John at john. hickman@alston.com.

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SIIA RELEASES WHITE PAPER ON ERISA PREEMPTION

he Self-Insurance Institute of America, Inc. (SIIA) has released a comprehensive white paper providing an overview how ERISA is structured and enforced, key Federal and State level, and its importance for self-insured group health plans. SIIA’s white paper is both an ongoing member resource, as well as an important educational and advocacy tool. The Employee Retirement Income Security Act (ERISA) is the key Federal law that governs the provision of employee benefits offered to workers employed by private-sector companies, non-profit institutions, and labor unions. As the 50th anniversary of the enactment of ERISA nears, it is more important than ever that policymakers adhere to the original intent of the law: Ensuring that selfinsured health plans are subject to a uniform Federal system of regulation, instead of a “patchwork” set of requirements established by different States. The most recent effort to erode ERISA has come from States attempting to lower drug costs by regulating Pharmacy Benefit Managers (PBMs). Emboldened by the Supreme Court decision in Rutledge v. Pharmaceutical Care Management Association, there have been well over 100 bills introduced across 43 States that sought to regulate PBMs. However, many of these proposals go further than targeting PBM-related practices and the cost of prescription drugs by mandating that a self-insured plan change their plan structure, design, and/or administration, which has a direct impact on an ERISA-covered plan. In these instances, the Supreme Court has traditionally found that these types of State laws are preempted by ERISA. Despite the ebbs and flows of States attempting to erode ERISA and court rulings interpreting ERISA’s preemption provision, ERISA’s preemption powers have withstood the test of time. However, with the continued assault on ERISA, the self-insurance industry must remain vigilant in our defense of ERISA preemption and its ability to maintain a uniform set of regulations for self-insured plans. To request a copy of the white paper, please contact Ryan Work at rwork@siia.org

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Medical Stop Loss from Berkshire Hathaway Specialty Insurance comes with a professional claims team committed to doing the right thing for our customers – and doing it fast. Our customers know they will be reimbursed rapidly and accurately – with the certainty you would expect from our formidable balance sheet and trusted brand. That’s a policy you can rely on.

Reimbursement done right. www.bhspecialty.com/msl The information contained herein is for general informational purposes only and does not constitute an offer to sell or a solicitation of an offer to buy any product or service. Any description set forth herein does not include all policy terms, conditions and exclusions. Please refer to the actual policy for complete details of coverage and exclusions.

THE SELFINSURED HEALTH PLAN COMPLIANCE CLOCK COUNTS DOWN FOR 2023

Written By David Ostrowsky

F F

or HR professionals, the fourth quarter invariably presents considerable challenges. In addition to handling daily operational work involving employee benefits, HR departments are bracing for the deadline-driven annual open enrollment process—while navigating the upcoming holiday season, no less. With all the looming federal and state deadlines and corresponding action items, it can be overwhelming, if not daunting, when it comes time to review self-funded health plan documents, whether they be summary plan descriptions (SPDs), plan documents (PDs), combined SPD/PDs, wrap documents, cafeteria documents, and SBCs.

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The following guide outlines several critical compliance deadlines and reminders germane to end-of-year planning, though it should be noted that this is not meant to be a complete and exhaustive list of compliance requirements deadlines. DECEMBER 31 - SUBMIT TO CENTERS FOR MEDICARE & MEDICAID SERVICES (CMS) THE GAG CLAUSE PROHIBITION ATTESTATION

(GCPCA).

Under the Consolidated Appropriations Act of 2021 (CAA), group health plans and health insurance issuers are required to annually submit an attestation that they are in compliance with the gag clause prohibition, a rule that bars plans and issuers from entering into agreements with providers, TPAs, or other service providers who would inhibit either provider-specific cost or quality information sharing with plan members or claims data sharing with plan sponsors as well as their service providers. The first gag clause prohibition attestation is due on December 31, 2023, covering the period starting December 27, 2020, or the effective date of the group health plan coverage (if later), through the attestation date. Subsequent attestations, spanning the period since the last preceding attestation, are due by December 31 of each subsequent year. The primary burden of responsibility associated with the GCPCA submission falls on issuers and TPAs. As such, it is advisable for plans and issuers to read their service agreements to determine how the GCPCA is covered and to ensure that everything is in line for a submission to be executed by December 31.

It should be mentioned that WHCRA mandates group health plans and health insurance companies (including HMOs) to notify participants about coverage required under the law. Notice regarding the availability of these mastectomy-related benefits must be given: 1. To participants and

beneficiaries of a group health plan during enrollment, and to policyholders when an individual health insurance policy is issued; and

2. On a yearly basis to group

health plan participants and beneficiaries, and to policyholders of individual policies.

However, WHCRA does not require group health plans or health insurance issuers to cover mastectomies. If a group health plan or health insurance issuer decides to cover mastectomies, then the plan or issuer is likely subject to WHCRA requirements.

DECEMBER 31 - DISTRIBUTE ANNUAL WOMEN’S HEALTH AND CANCER RIGHTS ACT (WHCRA) NOTICE.

The Women’s Health and Cancer Rights Act of 1998 (WHCRA) is a federal law that gives protection to patients who opt to have breast reconstruction in connection with a mastectomy. By December 31, both ERISA and non-ERISA calendar year plans are required to distribute the annual WHCRA notice to their respective participants (employees and retirees), COBRA enrollees, and other beneficiaries receiving benefits and alternate recipients under QMCSOs. Of note, self-insured state and local government health plans have the ability to opt-out. Generally speaking, the WHCRA notice is disseminated during initial enrollment and then annually, before each plan year. Electronic disclosure is allowed in accordance with the Department of Labor (DOL) guidelines.

DECEMBER 31 - DISTRIBUTE NOTICE OF PREMIUM

ASSISTANCE UNDER MEDICAID OR THE CHILDREN’S HEALTH

INSURANCE PROGRAM (CHIP).

By December 31, both ERISA and non-ERISA calendar year plans must distribute the notice of premium assistance under Medicaid or the Children’s Health Insurance Program (CHIP) to all employees, irrespective of their DECEMBER 2023

eligibility or enrollment status, traditionally as a separate document – even if provided in conjunction with enrollment materials. This notice should be provided by the last day of the plan year prior to the year to which the notice relates.

FIRST DAY OF OPEN ENROLLMENT – DISTRIBUTE THE SUMMARY OF BENEFITS AND COVERAGE (SBC).

For benefit-eligible employees who have to make affirmative benefit elections, the SBC, essentially an overview of a health plan’s costs, benefits, covered healthcare services, and other features that are critical to healthcare consumers, needs to be provided at the onset of open enrollment. For those employees who do not have to make affirmative benefit elections, the SBC needs to be provided 30 days before the beginning of the plan year. This rule applies to both ERISA and non-ERISA plans.

FIRST DAY OF OPEN ENROLLMENT - MICHELLE’S LAW NOTICE.

“Michelle’s Law” is a piece of federal legislation that extends eligibility for group health benefit plan coverage to a dependent child enrolled in a higher education institution at the start of a medically necessary leave of absence if the leave normally would cause the dependent child to lose eligibility for coverage under the plan due to loss of student status. The extension safeguards eligibility of a sick or injured dependent child for up to one year. Michelle’s Law Notice has to be provided during open enrollment if the plan covers fulltime students beyond age 26. This rule also applies to ERISA and non-ERISA plans. As a Content Specialist for The Phia Group, David Ostrowsky manages many of the company’s internal and external communication functions. He is also a regular contributor to the company’s blog as well as to various healthcare periodicals, such as The Self-Insurer.

THE SELF-INSURER

Do you aspire to be a published author? We would like to invite you to share your insight and submit an article to The Self-Insurer! SIIA’s official magazine is distributed in a digital and print format to reach 10,000 readers all over the world. The Self-Insurer has been delivering information to top-level executives in the self-insurance industry since 1984. Articles or guideline inquires can be submitted to Editor at Editor@sipconline.net The Self-Insurer also has advertising opportunties available. Please contact Shane Byars at sbyars@ sipconline.net for advertising information.

“You have become a key partner in our company’s attempt to fix what’s broken in our healthcare system.” - CFO, Commercial Construction Company

“Our clients have grown accustomed to Berkley’s high level of customer service.” - Broker

“The most significant advancement regarding true cost containment we’ve seen in years.” - President, Group Captive Member Company

“EmCap has allowed us to take far more control of our health insurance costs than can be done in the fully insured market.” - President, Group Captive Member Company

“With EmCap, our company has been able to control pricing volatility that we would have faced with traditional Stop Loss.” - HR Executive, Group Captive Member Company

People are talking about Medical Stop Loss Group Captive solutions from Berkley Accident and Health. Our innovative EmCap® program can help employers with self-funded employee health plans to enjoy greater transparency, control, and stability. Let’s discuss how we can help your clients reach their goals.

This example is illustrative only and not indicative of actual past or future results. Stop Loss is underwritten by Berkley Life and Health Insurance Company, a member company of W. R. Berkley Corporation and rated A+ (Superior) by A.M. Best, and involves the formation of a group captive insurance program that involves other employers and requires other legal entities. Berkley and its affiliates do not provide tax, legal, or regulatory advice concerning EmCap. You should seek appropriate tax, legal, regulatory, or other counsel regarding the EmCap program, including, but not limited to, counsel in the areas of ERISA, multiple employer welfare arrangements (MEWAs), taxation, and captives. EmCap is not available to all employers or in all states.

Stop Loss

Group Captives

Managed Care

BAH AD2017-09 2/22

Specialty Accident www.BerkleyAH.com

You want unparalleled customer service. Employers need the right stop loss coverage. At Swiss Re Corporate Solutions, we deliver both. We combine cutting-edge risk knowledge with tech-driven solutions and a commitment to put our customers first. We make it easy to do business with us and relentlessly go above and beyond to make stop loss simpler, smarter, faster and better. We’re addressing industry inefficiencies and customer pain points, moving the industry forward – rethinking employer stop loss coverage with you in mind. corporatesolutions.swissre.com/esl

Employer Stop Loss: Limit Health Care Exposure. Advancing Self-funding Together. Insurance products underwritten by Swiss Re Corporate Solutions America Insurance Corporation. © Swiss Re 2022. All rights reserved.

NEWS

FROM SIIA MEMBERS

2023 DECEMBER MEMBER NEWS SIIA Diamond, Gold, and Silver member companies are leaders in the self-insurance/captive insurance marketplace. Provided below are news highlights from these upgraded members. News items should be submitted to membernews@siia.org. All submissions are subject to editing for brevity. Information about upgraded memberships can be accessed online at www.siia.org. If you would like to learn more about the benefits of SIIA’s premium memberships, please contact Jennifer Ivy at jivy@siia.org.

DECEMBER 2023

HCC Life Insurance Company operating as Tokio Marine HCC - Stop Loss Group

We Know ... Risk We study it, research it, speak on it, share insights on it and pioneer new ways to manage it. With underwriters who have many years of experience as well as deep specialty and technical expertise, we’re proud to be known as experts in understanding risk. We continually search for fresh approaches, respond proactively to market changes, and bring new flexibility to our products. Our clients have been benefiting from our expertise for over 45 years. To be prepared for what tomorrow brings, contact us for all your medical stop loss and organ transplant needs.

Tokio Marine HCC - Stop Loss Group A member of the Tokio Marine HCC Group of Companies TMHCC1196- 11/2023

Visit us online at tmhcc.com/life

NEWS UNDERWRITING MANAGEMENT EXPERTS ADDS DIPESH PATEL AS NEW DIRECTOR OF UNDERWRITING

Philadelphia, PA—Underwriting Management Experts (UME), a leading provider of self-funded stop-loss insurance, is pleased to announce the addition of Dipesh Patel as new Director of Underwriting, effective November 6, 2023.

Dipesh Patel Director of Underwriting Underwriting Management Experts Patel is a skilled underwriter with 15 years of experience in the insurance industry. He began his career as a stop loss claims analyst, before moving into underwriting in 2013. Prior to joining UME, Patel was an underwriter for organizations including AccuRisk Solutions and Zurich North America. He has extensive knowledge in underwriting a variety of different types of groups, including fully insured, level funded, traditional, and RBP. He has a passion for education and is always looking for ways to expand his knowledge of different products.

"Throughout my work history, I have always prioritized working with great teams and people,” Patel said. “Since my first interview with the team at UME, I have known that I will be joining an excellent team. I look forward to helping UME continue its growth and to immersing myself in the innovative products that UME offers.” Patel received his degree from the University of Massachusetts Lowell.

Kim Schmidt, Chief Underwriting Officer, said, “Dipesh will be a great addition to our robust team. His experience and desire for excellence are just the ticket we need for further success, as well as ensuring that our clients and partners continue to receive the creative solutions they need.”

DECEMBER 2023

NEWS TOKIO MARINE HCC - STOP

RYAN SPECIALTY ACQUIRES ACCURISK HOLDINGS

ANNOUNCES PROMOTION OF

Ryan Specialty, a leading international specialty insurance firm, is pleased to announce it has signed a definitive agreement to acquire AccuRisk Holdings, LLC (“AccuRisk”), a medical stop loss managing general underwriter (MGU). AccuRisk is headquartered in Chicago, IL and was founded in 2017.

LOSS GROUP (TMHCC)

KATRINA REEDUS TO ASSISTANT VICE PRESIDENT OF ORGAN TRANSPLANT

We are pleased to announce the promotion of Katrina Reedus to Assistant Vice President of Organ Transplant. She originally joined TMHCC as a Transplant Nurse Advisor before advancing into the role of Account Manager. Prior to TMHCC, Katrina worked as a Transplant Coordinator at a large hospital before transitioning to the Team Lead on the Clinical Informatics Team in Information Services. In her new role, she will be responsible for much of the day-to-day operations, including underwriting, sales administration and account management within the organ transplant business unit. She will continue to report to Robby Kerr, Senior Vice President at TMHCC. “When I first interviewed Katrina for the Transplant Nurse Advisor role, I envisioned her taking on a larger role within this business unit based on her additional experience outside of organ transplant. I’m impressed with her continued effort to learn our business and delighted to announce her promotion. She will continue to do good work for organ transplant and TMHCC,” said Robby Kerr.

Discussing the acquisition, Patrick G. Ryan, Founder, Chairman & CEO of Ryan Specialty, said, “Dan and the AccuRisk team are proven leaders in the medical stop loss space, having built one of the largest independent medical stop loss MGUs. Moreover, the AccuRisk team shares our vision to develop a comprehensive integrated health solution, providing retail brokers with a ‘one stop shop’ for self-insurance needs. Together Ryan Specialty and the AccuRisk professionals will be able to accelerate the rate of innovation in the employee benefits industry.” John Zern, President & CEO of Ryan Specialty Benefits, commented, “AccuRisk adds exceptional AccuRisk’s offerings include medical stop loss underwriting, group captives, supplemental health care

Expect More FROM YOUR PARTNERS

Premier Broker Support

Stop-Loss Management Services. Claim Risk Management Solutions.

DECEMBER 2023

What If You Could Have The Value Of A Direct Carrier, With The Underwriting Expertise Of An MGU? You Can. Discover The Value Of Partnership

A Full Service MGU Program Manager Custom Plans | EPO | RBP | PPO | Level Funding

NEWS management, and occupational accident. AccuRisk’s deep expertise, combined with the breadth of its product offering, gives Ryan Specialty the capabilities to holistically service our retail broker and TPA clients. I look forward to collaborating with Dan as a part of the team to deliver innovative solutions on a nationwide basis.” Dan Boisvert, President & CEO of AccuRisk, commented, “Since our founding, we have been focused on driving product innovation to enhance both flexibility and efficiency. We are thrilled to be partnering with Ryan Specialty, who shares our vision for the future of employee benefits. We are equally excited to have the opportunity to work with Ryan Specialty to further enhance our distribution relationships. We believe that joining Ryan Specialty sets the stage for the next upward inflection point in our growth trajectory.” AUXIANT ANNOUNCES GREG BERTH AS NATIONAL SALES EXECUTIVE

Greg Berth has joined Auxiant, a national Third-Party Administrator, as a National Sales Executive. Greg brings over 30 years of experience partnering with brokers and consultants throughout the country as a trusted resource for the most cost-effective benefit solutions. Berth joins the Auxiant sales team with the responsibility for new and existing client growth. “For many years I have respected Auxiant for their innovative medical management solutions and dedication to the highest level of service,” said Berth, “I am excited to be a part of an experienced Auxiant team and contribute to the company’s continued success.”

About Auxiant Auxiant is an independent TPA with over 150 full time employees. We have offices in Cedar Rapids, Iowa, Madison, Wisconsin and Milwaukee, Wisconsin. We have been in business since 1982 and are dedicated to providing our clients with the best possible service. Each client has a dedicated team of individuals who specialize in areas including stop loss, account management, enrollment, claims, Section 125 and or COBRA. Visit www.auxiant.com CHRISTINE COOPER, CEO, AEQUUM, SELECTED FOR BENEFITSPRO’S 2023

LUMINARIES AWARDS

CLEVELAND--aequum LLC, serving more than 425 self-insured health plans and their participants, has been named to BenefitsPRO LUMINARIES Class of 2023 in the category of Humanizing Benefits.

Berth’s experience includes business development, sales, marketing, strategic planning, stop-loss market development and cost containment strategies. He has held sales leadership roles at national and international health insurance organizations as well as the responsibility of Executive Vice President of Sales/General Manager for a regional service center of a national third-party administrator. His success is due to his industry knowledge and ability to build strong relationships and strategic partnerships. Greg can be reached at (920)470-4148 or gberth@auxiant.com. Christine Cooper CEO aequum DECEMBER 2023

NEWS This recognition celebrates top professionals and organizations within the benefits industry that strive to transform and humanize the field and set a bright example within the business. The 2023 honorees were selected by a panel of industry experts based on how well they stated and achieved goals with regards to the nomination category; how impactful their work has been; how dedicated the nominee has been to furthering modernization and humanization in the insurance business; and the nominee’s commitment to the highest ethical standards, as well as dedication to service and excellence. “This year’s honorees exemplify how leading benefits professionals are moving their industries toward a brighter future and producing meaningful results in the areas that matter most to employers, employees and the future of benefits and health care,” says BenefitsPRO Editor in Chief Paul

“Our team is excited to recognize these industry thought leaders and innovators.” Wilson.

THE SELF-INSURER

“I am deeply honored to accept this prestigious award on behalf of the aequum team,” says Christine Cooper, CEO, aequum.

“Being recognized by BenefitsPRO LUMINARIES in the category of Humanizing Benefits reaffirms our commitment to protecting and advocating for patients, health plans and insurers across the U.S. This award is a testament to the dedication of our entire team and further motivates our pursuit of excellence in making healthcare fair, just and accessible for all.”

2023 SELF-INSURANCE INSTITUTE OF AMERICA BOARD OF DIRECTORS

CHAIRWOMAN OF THE BOARD* Elizabeth Midtlien Vice President, Emerging Markets AmeriHealth Administrators, Inc. Bloomington, MN

DIRECTOR Adam Russo CEO The Phia Group, LLC Canton, MA

CHAIRMAN ELECT, TREASURER AND

DIRECTOR Deborah Hodges President & CEO Health Plans, Inc. Westborough, MA

CORPORATE SECRETARY * John Capasso President & CEO Captive Planning Associates, LLC Marlton, NJ

DIRECTOR Stacy Borans Founder/Chief Medical Officer Advanced Medical Strategies Lynnfield, MA

COMMITTEE CHAIRS

Workers’ Compensation Committee Shelly Brotzge Regional Underwriter, Group Self Insurance Midwest Employers Casualty Chesterfield, MO

SIEF BOARD OF DIRECTORS CHAIRMAN

Nigel Wallbank President Leadenhall, LLC Ocala, FL

Captive Insurance Committee Jeffrey Fitzgerald Vice President Innovative Captive Strategies Waukee, IA

PRESIDENT Daniél C. Kimlinger, Ph.D. CEO MINES and Associates Littleton, CO

Future Leaders Committee Erin Duffy Director of Business Development Imagine360 Wayne, PA

DIRECTORS Freda Bacon Administrator AL Self-Insured Workers' Comp Fund Birmingham, AL

DIRECTOR Mark Combs CEO/President Self-Insured Reporting Greenville, SC

Price Transparency Committee Christine Cooper CEO aequum, LLC Cleveland, OH

Les Boughner Chairman Advantage Insurance Management (USA) LLC Charleston, SC

DIRECTOR Shaun L. Peterson VP, Stop Loss Voya Financial Minneapolis, MN

Captive Insurance Advocacy Task Force Jeffrey K. Simpson Partner Womble Bond Dickinson (US) LLP Wilmington, DE

Alex Giordano Chief Executive Officer Hudson Atlantic Benefits Bellmore, NY

DIRECTOR Amy Gasbarro Chief Operating Officer Vālenz Phoenix, AZ

* Also serves as Director

DIRECTOR Matt Kirk President The Benecon Group Lititz, PA

Virginia Johnson Strategic Account Director Verisk/ISO Claims Partners Charlotte, NC

DECEMBER 2023

SIIA NEW MEMBERS DECEMBER 2023 CORPORATE MEMBERS

Tim Woodyard CEO Bravo Health Partners LLC Scottsdale, AZ

Shabsai Shuchatowitz CEO Evergreen Benefits Group Lincolnwood, IL

Raquel Schaps Founder/CEO Infinitintel Inc. Minneapolis, MN

Doug Rasmussen VP, Business Development ConnectureDRX Milwaukee, WI

Michael Zucker Chief Strategy Officer Health Here Nashville, TN

SILVER MEMBER

Amy Hester CEO HD Nursing Benton, AR

EVENTS Healthcare Price Transparency Forum February 26-27, 2024 JW Marriott Charlotte Charlotte, NC

Artificial Intelligence Forum February 27-28, 2024 JW Marriott Charlotte Charlotte, NC

Spring Forum March 25-27, 2024 JW Marriott Hill Country Resort & Spa San Antonio, TX

Future Leaders Forum April 9-10, 2024 Kansas City Marriott Downtown Kansas City, MO

Corporate Growth Forum May 6-8, 2024 Westin Poinsett Greenville, SC

Cell & Gene Therapy Stakeholders Forum May 29-30, 2024 JW Marriott Mall of America Minneapolis, MN

International Conference July 22-24, 2024 The College Green Hotel Dublin Dublin, Ireland

National Conference September 22-24, 2024 JW Marriott Desert Ridge Phoenix, AZ

THE SELF-INSURER

Save your clients money while improving their member experience? Doesn’t sound possible. But Zelis is delivering. We’ve saved over $27B in network and claim costs while helping healthcare carriers, TPAs, and self-insured employers modernize the healthcare financial experience. Zelis is your trusted partner to optimize financial performance and manage risk while delivering a great experience.

Connect with Zelis today at 888.311.3505 or visit zelis.com to get started.

Life Is Not Without Risk.

An infant with a 60-day NICU stay could exceed $1 million in costs.*

Amy didn’t think she’d spend her maternity leave with her baby in the NICU. Neither did her self-funded employer. Catastrophic claims can arise unexpectedly. If the plan has the right Stop Loss protection in place, focus can remain on achieving business goals and welcoming Amy back when it’s time. When you work with the experts at HM Insurance Group, you can have confidence that the claims will be paid. Find more on hmig.com.

SECURE FINANCIAL PROTECTION WITH OUR INSURANCE AND REINSURANCE OPTIONS: Employer Stop Loss: Traditional Protection • Small Group Solutions • Coverage Over Reference-Based Pricing Managed Care Reinsurance: Provider Excess Loss • Health Plan Reinsurance *

Cost estimate based on HM Insurance Group historical Stop Loss data and additional industry observations, May 2022.

In all states except New York, coverage may be underwritten by HM Life Insurance Company, Pittsburgh, PA, or Highmark Casualty Insurance Company, Pittsburgh, PA. In New York, coverage is underwritten by HM Life Insurance Company of New York, New York, NY. The coverage or service requested may not be available in all states and is subject to individual state approval. MTG-3438 (5/22)