The Self-Insurer January 2024 Digital Edition

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JANUARY 2024 VOL 183

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

F E AT U R E S 4


SIIA’s International Conference returns with vigor To one of the world’s leading financial centers and reinsurance markets By Bruce Shutan



By Caroline McDonald




By Alston & Bird LLC Health Benefits Practice






By Laura Carabello

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






Written By Bruce Shutan


ublin, the capital of the Republic of Ireland, founded by Vikings and the site of SIIA’s 2024 International Conference in July, is known for Guinness, St. Patrick’s Cathedral, James Joyce, U2, spectacular golf courses, and lowland landscapes. But it’s also home to more than 1,100 overseas manufacturing and service companies and one of the world’s nine main captive insurance market centers. Now, it is the destination for a unique educational and networking event focused on international trends, challenges, and solutions related to self-insured employee benefit programs and captive insurance companies.



International Perspective “We are pleased to bring back SIIA’s International Conference given that employers are increasingly operating in multiple countries and require more sophisticated employee benefit and risk-management solutions,” says SIIA President and CEO Mike Ferguson. “Attendees will learn about some of these solutions they can bring to their clients while identifying potential business-development opportunities.” Prominent headquarters for most of the world’s ten leading banking institutions are located in Dublin, while all of the world’s ten leading reinsurance entities, including Munich Re, have operating bases out of Dublin, observes Sumanth Reddy, CEO of Quantify Health, who will be speaking at the conference. Dublin-based Mike Matthews, international commercial director for Artex Risk Solutions, who also is on the conference agenda, is excited that SIIA is coming to his city and thinks

“it’s a great opportunity to showcase Dublin as a go-to captive Mike Matthews domicile, especially for U.S. corporations looking to operate throughout the European Union.” "Ireland has an excellent reputation as an insurance and reinsurance captive domicile of choice. It continues to grow due to an evolving regulatory system and Ireland’s location in Europe", adds Greg Arms, president and CEO of the Arms Group and 2024 SIIA International Conference program chairman. He also notes that Dublin ranked 35th of 215 cities worldwide in a quality-of-life survey conducted by Mercer. Serving as a gateway to Europe for multinationals, Ireland boasts strong political and regulatory stability, as well as a highly educated English-speaking workforce, according to Lorraine Stack, the Dublinbased managing director of Marsh Captive Solutions International, another conference speaker who says these attributes have drawn Americans to their book of business.


But Ireland also has a rich history that SIIA members will find as fascinating as it is relevant to their work. Stack notes that it is home to the first direct-writing captive in 1989, the first employee benefit captive in Europe in 1996, the first direct-writing motor insurer in Europe in 2003, the first multi-jurisdiction pension reinsurance captive in 2011, and the first Solvency II catastrophe bond in 2016. Amoung more than 70 captive domiciles in the world, Dublin ranks at No. 15 and is becoming a popular onshore destination that’s competing with offshore locales that Stack notes are often located in sunny places like Bermuda or the Cayman Islands, where there’s been a very low or zero local corporation tax. She sees a roughly 50/50 split between the world’s more than 7,000 onshore and offshore captives. While many blue-chip companies have been drawn to Dublin, Matthews believes the city “sort of lost its way over the past five years, and I think it’s principally as a result of the local regulator, Central Bank of Ireland, having a lack of resource bandwidth in the wake of Brexit, and new companies establishing in Ireland as their Brexit solution, but also resources in general, to take on new projects, formations and licensing activities.”



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International Perspective The good news, he explains, is that the regulator has come through that patch and is looking to be more commercial regarding captives, which will feed into new formations. Apart from a new direct-rider captive, he says one other telling sign is eight license extensions in 2023, which is “a significant uplift on prior years” and a positive development in terms of new organizations looking to launch a captive in Dublin or those with existing captives there to make greater use of those vehicles. His expectation that there will be several new captive formations over the next 12 to 24 months, which will return Dublin to the global captive stage sooner rather than later. Matthews also expects lively debate around the absence of protected cell legislation in Ireland, as well as the direction of travel and challenges for captives around the aforementioned Solvency II, which codifies European Union insurance regulations and reporting requirements, including the amount of capital that must be held to reduce the risk of insolvency. When Solvency II was rolled out across Europe in 2016, Stack says the law required higher capital, more governance, and more complexity. It also coincided with a soft market, and there was a pause in captive formations. But since 2021, when the hard market kicked off again, she notes that

several European domiciles have started to see a lot of growth. “Captive industry players are actively speaking to the Irish regulator about how we can make things better in Ireland,” she adds, “and we’re quite hopeful for some changes to the application process and other proportionality principles that will make Ireland more captive-friendly than it is right now.” GIG-ECONOMY FLEXIBILITY

Several hot topics about trends in captive insurance are expected to garner a generous share of discussion at the Dublin event.

“Cybersecurity is one of our fastest growing now,” Stack reports, noting that this

Lorraine Stack

non-traditional line has only become insurable in recent years. She explains that the gig-economy is also fertile ground for activity, given that there are no off-the-shelf insurance products that are specific or relevant enough for players in this growing space. Examples of the latter include large telephone companies putting handset insurance into captives, along with motor vehicle manufacturers, particularly those that make auto parts for self-driving cars. “They’re finding that they have much more relevant data on their drivers than an insurer,” she says. Captives give gig-economy businesses financial flexibility, according to Matthews. “For example,” he says, “rideshare companies offering dynamic pricing instead of a fixed price, and food and parcel delivery companies with non-owned auto risks are typically hard-to-place insurance risks in the traditional market. So utilizing your captive to fund those risks is a perfect match.” Another exciting development Stack has seen is that the concept of environmental, social, and governance in investing, known as ESG, is becoming more prevalent in the captive space. “Captives will definitely be part of the solution in energy transition,” she adds.




Much discussion at the conference will also involve medical travel. The advantages of seeking healthcare in another country include cost savings and reduced wait times for kidney or heart transplants, as well as combining the need for medical care with tourism, Reddy points out. However, there also are downsides. Reddy fears that patients risk subpar treatment, including a lack of proper post-operative care if there are complications, encountering facilities that don’t meet U.S. safety standards, and communication barriers. This is especially true for the clinical intervention part due to language differences, which can lead to misunderstandings between healthcare providers and patients. Building on this, Reddy asserts that care delivery in the U.S. is constantly improving, thanks to the innovation of new value driven care delivery platforms. He argues that an ability to reap the financial benefits of seeking care halfway across the globe within the confines of the U.S. will likely result in a greater willingness on the part

Sumanth Reddy

of patients to engage in an alternative site of care and a higher adherence rate. Offering a more localized perspective, Matthews notes, “We’re seeing more Irish and U.K.-based patients looking at traveling to places like Turkey and

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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.

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International Perspective Eastern Europe for, in particular, cosmetic surgery. The driver is very much financial and the ability to access it quickly.” Key issues with similar procedures in Ireland and the U.K. involve the length of waiting lists, as well as whether they’re covered by insurance. In the past 12 to 18 months, he has seen “a significant increase in the number of horror stories around the quality of the medical procedures that people are receiving, so effectively you’re getting what you’re paying for.” The focus has been on postsurgery care and ensuring that patients can travel back to their home country to convalesce for an appropriate amount of time. ONSHORE VS. OFFSHORE

Given the cross-pollination of ideas from SIIA members about benchmarking employee benefit plans, Reddy believes “we can learn a lot from how our counterparts and colleagues from different parts of the world engage with their stakeholders, whether those are employers, municipalities, or single-payer ecosystems that bear financial exposure by supporting the total cost of care for their population.” He references care delivery models in Europe, Asia, and other parts of the world that “seem to do it better for less dollars” compared to the U.S.,

“the highest cost with one of the lowest yields in the world. I view that very large delta as an opportunity for improvement.” which has

According to Reddy, there are many threads to pull from conversations on universal coverage, cost control, preventative care and a reduction in administrative burdens. He points out that in examining healthcare systems with socialized medicine around the globe, it’s easy to observe a streamlined supply chain and reduced administrative burden due to less paperwork. He adds that these efficiencies offer valuable lessons that could be adapted to refine the established systems and processes within the U.S. There are also other considerations worth mentioning. “If you look at the Googles and Apples of the world, they actually don’t place a lot of their financial or intellectual property assets in the Caribbean,” he explains. “Dublin stands as the European epicenter for finance and insurance, and it’s high time for the city to extend a warm welcome to our captive stakeholders. This invitation acknowledges the city’s wellestablished diversity within financial services.”

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International Perspective Matthews and his team are seeing a migration from Bermuda to U.S.-parented captives back onshore, including European domiciles, with positive legislative developments in France with the U.K., Spain, and Italy looking to follow suit. “Whether that means the traditional offshore captive model is dying or dead, time will tell,” he says, “but it is a very on-point conversation.” SIIA International Conference attendees will learn how captives are increasingly being used to fund more employee-centric solutions. Matthews says that includes life, disability, and medical, which they typically underwrite, but also extending their use to wellbeing and wellness for a more well-rounded, world-leading benefits package to attract and retain top talent.

Greg Arms

Another timely topic will be the impact regional wars in Ukraine and Israel are having on insurance capacity, access, and rates, as well as reinsurance markets, according to Arms, noting how speakers from AIG and the London market will address those issues. “We’re going to look at the global geopolitical situation and how it’s impacting workforce populations, medical travel destinations, and expatriates moving around the world,” he adds.


Arms is enthusiastic about the “blending of European and American experts,” which will enable attendees to compare and contrast their practices. Among the global employee benefits issues expected to be discussed, he’s most intrigued by digital health platforms, advanced analytics, behavioral health, and wellness programs.

Adds Matthews: “When you get different cultures and markets in the same room together, both sides get a chance to talk about how they are solving problems in their markets. We know as a global business that something that works in the U.S. can be transportable to our international markets and vice versa… We work very collaboratively between our North American and international teams, and that sparks creativity and the development of new products and services throughout the organization.” Bruce Shutan is a Portland, Oregon-based freelance writer who has closely covered the employee benefits industry for more than 35 years.


Complete event information can be accessed now at




Contractors Turn to Captives to Gain Control Written By Caroline McDonald


aced with an unpredictable economy, rising insurance premiums and the increasing costs of property, supplies and transportation, the construction industry has been seeking ways to mitigate risk and exposure. According to Swiss Re Institute’s Sigma report, “non-life insurance premiums will grow by 1.6% globally in real terms in 2024, after 1.4% year-over-year real growth in 2023. In P&C we estimate 3.4% global real premium growth in 2023 given significant repricing of risk.” John Capasso, chairman and chief executive officer at Captive Planning Associates, LLC, said, “Over the last year or two, the insurance markets have hardened. First and foremost is the property market.”



Contractors Turn To Captives For example, he said, “In the agriculture industry, coverage for barns and other buildings went from $100,000 to $1 million.” Like other industries, the construction industry is increasingly turning to captive insurance to help curb losses. “Captives are being used for general liability, property when a company owns a building, and covering subcontractors,” Capasso said. In this industry, captives have been used for more than 15 years

“Because construction is capital intensive. However, the requirements of forming one can mean significant capital and/or collateral,” he explained. "The captive can then become capital-intensive, and it becomes a tradeoff with the contractor as to how to allocate that capital wisely.” What drives their formations in this industry, he said, “is control – control of the claim and control of the premium dollars.” There is also a profit motive, “to share in the underwriting profit rather than giving it to commercial carriers,” Capasso said. “And if they are large enough, they can usually qualify as an insurance company for tax purposes, because they have sufficient risk distribution.” He added that each building “is its own business enterprise and some of the captives are formed as LLCs with multiple properties, which gives them risk distribution.” Randy Sadler, principal at CIC Services notes that “About a fifth of our clients are in the construction space and that’s been consistent. That includes remodelers, homebuilders, and builders of commercial structures. It also includes road builders and graders, tunnelers and bridge builders.” He, too, is seeing a hard market as the main driver for formations. “During the past two years we’ve seen a steady build-up. The insurance markets are definitely hard right now,” Sadler said.


Why do construction companies turn to captives? “What happens is that invariably they will get a premium increase, but what really pours salt in the wound is a reduction in coverage,” Capasso said. “Usually, it’s their insurance broker that they talk to first about the high cost of coverage.” A good agent, he added, will propose alternatives, such as a captive. Another scenario is that someone they know will suggest a captive. “Captives are becoming more prevalent in mainstream vocabulary in various circles. Also, a lot of industry periodicals now have articles about captives,” Capasso said. “We picked up a client recently after a conversation about captives was broached at a cocktail party.” Currently, construction captives are being used mainly for general liability, property and covering subcontractors, he said. WHO IS FORMING THEM?

The types of companies he is seeing forming captives most are construction companies/property managers. “They are usually family owned and have multiple divisions, from construction to building management, and some have a real estate license, and buy and sell properties. They’re diversified,” Capasso said, noting JANUARY 2024


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Contractors Turn To Captives that pure captives are used in such cases.

$400,000 to $700,000 a year. Overnight they saved more than $1 million by transferring the first layer to the captive.”

“We just got one approved a week ago. They build and propertymanage in the captive,” he said. “We’re also working on forming another one, as their premiums are going up significantly.”

Sadler noted, “We work predominantly in the middle markets and what we’re seeing typically is a need to control construction costs. Many of our clients turn to group captives for their workers’ compensation and their liability as well,” he said. “They also turn to us for builder risk, construction defects and warranty.”

Having a captive, he said, is a way to help them assume risk “if they have the proper risk appetite and are able to show five to 10 years of loss runs.”

The logic with construction defects and warranty, he said is that

“most realize that if something is wrong, they will go back and fix it anyway. So, more are self-insuring construction With one contractor, “We took defect because they would rather fix it their general liability from a little over $3 million and put $2 million themselves.” of that into the captive because their loss history averages

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Contractors Turn To Captives Using this same reasoning, they seldom file warranty claims, “It makes a lot of sense to insure builder risk or construction defect through a captive and reserve for it,” Sadler said. More and more clients are also creating a profit center for their subcontractors’ bonds. Subcontractors, he said, are typically required to buy bonds or insurance, which is purchased from a third party. “We’ve had quite a few that realize that they manage their subs well,” Sadler added, “so they formed captives so subcontractors could buy the products from them. That has been a serious growth area.”

reoccurring. We can also price them more clearly in future proposals, reducing the chances of a profit fade.” LOOKING AHEAD “I expect that captives will continue to grow, not just in construction,” Sadler said. “It’s going to become guaranteed cost insurance because it’s so expensive. What a captive does is force you to have skin in the game.”

where they’re building so fast that there is a lot of profit. But we’re also dealing with an By having captives, he added, “businesses have a big incentive environment where construction clients to stay on top of what they are are focusing on getting more out of what doing and try to minimize loss. And familiarity with captives is they have.” growing.”

Many contractors, he said, are operating in an environment “


Joe Leonello Jr., president of Franjo Construction, a general commercial contractor in Homestead, Pennsylvania with 300 employees, says, “As contractors, we make mistakes.” As a result, he said, construction firms deal with the big issue of workmanship claims. Because risk mitigation around workmanship issues is not covered by traditional insurance, Leonello said they must take financial responsibility for these issues when they arise as uninsured claims, which can happen years in the future and can cause project profits to fade. He cites as an example a hotel that his firm had built, that had an issue with panels blowing off the building several years after completion. Franjo remedied the situation with its captive covering the repair cost of $70,000. Without the captive, Leonello adds, “We would have taken it on the chin.” Franjo started a single-parent captive six years ago to manage these risks. Leonello adds that the captive program enables his firm to benefit from a better understanding of risks in general and the workmanship issue in particular. “We gain risk management awareness,” he said. “We identify issues to reduce their likelihood of 16


Sadler added that he believes reinsurance carriers will “figure out a way to have captives come down-market. In a lot of cases reinsurance carriers can only write large risks, but with A.I. and other automated ways to do underwriting I would expect that we will see reinsurers writing smaller and smaller risks,” he said. This will allow captives to insure smaller companies and also give those companies more access to reinsurance “because now you must be in a group to get reinsurance access. I think that will evolve,” Sadler concluded.



Written By Alston & Bird LLC Health Benefits Practice


he year 2023 was another active one for health and welfare plans. It started with the big announcement of the end of the COVID-19 national emergency and public health emergency and peaked over the summer with the release of the long-anticipated proposed rules for non-quantitative treatment limitations under the Mental Health Parity and Addiction Equity Act (MHPAEA). Regulators also issued several sets of proposed rules, including proposed rules for fixed indemnity excepted benefits coverage and short-term, limited-duration insurance; privacy of reproductive health information; and investment fiduciaries. JANUARY 2024


Although there is still no final resolution to the independent dispute resolution (IDR) process, a new proposed regulation was issued this fall after several court opinions disrupted the federal IDR process. The IRS quietly released a chief counsel memorandum confirming that the substantiation rules for account-based plans really do mean what they say they mean. While litigation over state legislation of pharmacy benefit managers (PBMs) continues to wind through the courts, Congress introduced several bills this year aimed at regulating PBMs. We revisit some of the most pressing issues for employers, plan sponsors, plan administrators and service providers, and health insurers, and we provide some practice pointers heading into 2024. COVID-19: THE END IS HERE (NATIONAL EMERGENCIES AND OUTBREAK PERIOD EXPIRE)

For group health plans, this meant an end to several temporary changes that plan sponsors and group health plans were either required or permitted to make in response to the COVID-19 pandemic and the beginning of a transition back to pre-pandemic benefits and administration. The chart below provides a highlevel summary of the status of mandated or permitted benefits and relief granted in response to the COVID-19 national and public health emergencies.

On January 30, 2023, the White House announced that the national and public health emergencies would officially end on May 11, 2023.

BENEFIT/RELIEF COVID-19 tests (prescribed and OTC)

STATUS AFTER MAY 11, 2023 No coverage is required; plans that continue coverage can impose costsharing and medical management techniques such as pre-authorization and can disregard the safe harbor requirements for OTC COVID-19 tests (e.g., must cover up to eight tests per month per family member) if they continue to cover those tests.

COVID-19 vaccine

In-network: Coverage is required without cost-sharing under the Affordable Care Act’s (ACA’s) preventive services requirements. Out-of-network:

No coverage is required. Personal protective The IRS continues to recognize PPE as a qualified medical expense, so health equipment (PPE) flexible spending accounts (FSAs) and health reimbursement arrangements (HRAs) that allow reimbursement for all qualifying §213(d) medical expenses must continue to reimburse claims for PPE. Stand-alone telehealth Relief for these stand-alone plans from most ACA mandates continues until for employees not the end of the plan year that begins on or before May 11, 2023 (December eligible for employer’s 31, 2023 for calendar year plans) unless extended by future legislation or major medical group guidance (no such guidance has been issued as of the publication of this health plan advisory).





Relief for “excepted benefit” status of employee assistance programs (EAPs) providing COVID-19 diagnosing, testing, and vaccines

There is no clear guidance on whether EAPs can continue to provide these benefits and maintain status as an excepted benefit after May 11, 2023. Without further guidance, plan sponsors will need to weigh the risk of noncompliance with continuing to provide this benefit through the EAP until the end of the plan year.

Health savings accounts (HSAs)/highdeductible health plans (HDHPs):

IRS Notice 2020-15 allows HDHPs to cover COVID-19 testing before the deductible without disqualifying HAS eligibility, and as provided by IRS Notice 2023-37, this relief remains in effect for plan years ending on or before December 31, 2024. This relief will not be available for subsequent plan years.

COVID-19 testing HSAs/HDHPs: telehealth

The Coronavirus Aid, Relief, and Economic Security Act permitted HDHPs to cover pre-deductible telehealth and other remote services offered through the HDHP without disqualifying a person from HAS participation. Original relief expired on December 31, 2022, regardless of plan year; the Consolidated Appropriations Act (CAA), 2023 extended the relief, but only for plan years starting on or after January 1, 2023 and before January 1, 2025. The original relief for non-calendar year plans expired on December 31, 2022, and the extended relief was not available in 2023 for non-calendar year plans until the beginning of the 2023 plan year.

MHPAEA quantitative treatment limitations (QTLs)

For purposes of compliance with the “substantially all” and “predominant” tests for financial requirements and quantitative treatment limitations under the MHPAEA, relief from enforcement action was granted for any plan or insurer that disregarded mandatory COVID-19 diagnostic testing required by the Families First Coronavirus Response Act. The relief was intended to be temporary and presumably ended on May 11, 2023, meaning that nonmandated COVID-19 coverage must be taken into account for QTL testing.

Outbreak period transition of tolling periods The Outbreak Period refers to a period that began on March 1, 2020 and ended 60 days after the end of the national emergency, or July 10, 2023. During this Outbreak Period, certain timeframes for ERISA plans were suspended for up to one year or until 60 days after the end of the national

emergency, whichever was sooner. Once the Outbreak Period ended on July 10, 2023, any tolling period that had not already expired ended, and the clock for the applicable deadline began running as of July 11, 2023. The clock for the affected timeframes that were still suspended as of July 10, 2023 would have started ticking again as of July 11, 2023, and many of the deadlines have long since passed (e.g., the 30-day period to request HIPAA special enrollment and the 60-day election period for COBRA continuation coverage). However, for some timeframes, such as the date by which claims or appeals need to be filed, the Outbreak Period may still be operating to extend deadlines. For example, a plan that allows 180 days to file a claim would have JANUARY 2024


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 For more information about Sun Life products, visit 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 BRAD-6503-y SLPC 29427 01/22 (exp. 01/24)

suspended that timeframe for claims incurred before July 10, 2023. A claim incurred on January 1, 2023 would not have to be filed within 180 days of January 1, 2023, but instead within 180 days after July 10, 2023, or January 6, 2024. These extensions also apply to claims filed for FSAs and HRAs (e.g., the runout period following the end of each plan year during the Outbreak Period was suspended in accordance with the rules). Practice pointer: Be aware of the potential effect the Outbreak Period rules have on claims, appeals, COBRA elections, and COBRA payments. IRS SUBSTANTIATION GUIDANCE

On March 29, 2023, by way of chief counsel memorandum 202317020 (CCM), the IRS reiterated that when it comes to claims substantiation for reimbursement of medical expenses, there are rules that must be followed. The IRS confirmed that practices such as employee self-certification, sampling claims, de minimis claims substantiation level, auto-substantiation for certain favored healthcare providers, and advance approval of dependent care claims all fall short of what the Code Section 105, 125 and 129 rules require for claims substantiation. In driving this point home, the IRS explained that if a plan’s claim substantiation process does not meet IRS requirements, claims for all participants (even otherwise validly substantiated claims) are taxable. This CCM serves as an important reminder to review your plan’s and your third-party administrator’s (TPA) claim substantiation process to ensure that all claims adjudication satisfies IRS requirements. Here are some steps to keep in mind for plans that use debit cards for auto-substantiation to implement pay-and-chase procedures for all claims that are not auto-substantiated (there are no prescribed timelines for completing pay-and-chase): 

Ask for substantiation.

If substantiation is not provided, turn off the debit card. Turning off the debit card must come before any subsequent steps.

Demand repayment, offset against good claims, withhold from pay (where permitted by state wage withholding laws). While unclear, the IRS has hinted that the offsets must occur during the same plan year as the unsubstantiated claim. In fact, the CCM suggests, without analysis or explanation, that repayment and offsetting in a subsequent year may violate the prohibition under Code Section 125 against the receipt of deferred compensation. These three steps can be taken in any order as long as they are done uniformly for all participants.

If demanding repayment, withholding from pay, or offsetting are unsuccessful, then employers must treat such claims as any other bad debt, which can mean: o

Send the claim to collections.


Forgive the debt if not recoverable, which results in W-2 taxable income for the year forgiven (according to the CCM).


This step must come last, and defaulting to this step without going through the steps above may be considered evidence of a non-compliant substantiation process.



Practice pointer: Year-end is a good time to double-check your claims substantiation and pay-and-chase processes for compliance. Consult your TPA and legal adviser for assistance. PBM LEGISLATION AND LITIGATION

The year 2023 saw a flurry of bipartisan legislative activity at the federal level aimed at regulating PBMs. Much of the proposed legislation focuses on reforms in transparency, compensation disclosure, controlling the rising cost of prescription drugs, rebates, and preemption. HR 5378, the Lower Cost, More Transparency Act, was introduced in September and combines the work of three House committees. Legislation in the Senate includes: •

S. 1339 - Pharmacy Benefit Manager Reform Act

S. 2973 - Modernizing and Ensuring PBM Accountability Act

S. 127 - Pharmacy Benefit Manager Transparency Act of 2023

As these bills make their way through House and Senate committees, legislation at the state level continues to be challenged in courts, with the Tenth Circuit opinion in PCMA v. Mulready in August marking a big win for ERISA preemption and plan sponsors. Mulready involved a preemption challenge to an Oklahoma PBM law and comes just two and a half years after the Supreme Court’s decision in Rutledge v. PCMA. In Rutledge, the Supreme Court identified two types of state laws that are preempted: (1) laws that



require providers to structure benefit plans in particular ways and (2) laws that have an acute but indirect economic impact and, thus, force providers to adopt a certain scheme of substantive coverage. At issue in Mulready were the geographic standards imposed on networks (network access standards); prohibition against requirements or incentives for using a particular provider (discount prohibition); the “any willing pharmacy” requirement (AWP); and prohibitions regarding terminations of pharmacists from network if on probation. Glen Mulready, the Oklahoma insurance commissioner, argued that there should be no preemption because Oklahoma law regulates the PBMs and not the ERISA plans. The Tenth Circuit rejected the argument and remanded the case, holding that the network-related provisions were all preempted by ERISA (and the AWP requirement was preempted in part by Medicare Part D) because these provisions impermissibly mandated a particular benefit structure. In essence, PBMs in Oklahoma could only offer a single network tier without any customization. ERISA’s savings clause was not addressed in the opinion because Mulready did not raise the issue. The Tenth Circuit distinguished Rutledge because Arkansas law merely regulated pricing terms in contracts between PBMs and pharmacies without forcing plans to adopt any particular scheme of substantive coverage. In September, the Oklahoma insurance commissioner filed a petition for an en banc rehearing. We may hear more from Mulready again in 2024.

Practice pointer: Continue to monitor PBM legislation at the state and federal levels. Compliance requirements in this area are very fluid. TRANSPARENCY

Consolidated Appropriations Act, 2021 The required prescription drug and healthcare spending report under Section 204 of Division BB of the CAA, 2021 began in 2023. The first deadline (for 2020 and 2021 data submissions) was again extended from December 31, 2021 to January 31, 2023, and the second deadline was extended from June 1, 2022 to June 1, 2023. All subsequent prescription drug reporting to the Centers for Medicare and Medicaid Services (CMS) is due on June 1 each year for the prior calendar year (regardless of plan year). CMS has provided several resources, including manuals and technical assistance, on its Prescription Drug Data Collection webpage.

FAQs Part 61: New guidance for ACA transparency in coverage rules The CAA, 2021 also added reporting requirements to the ACA in the transparency in coverage (TiC) rule requirements. These TiC reporting requirements required group health plans subject to the ACA to post publicly available machinereadable files (MRFs) of allowed amounts and to make a cost share estimate tool available. The MRFs include three different files: in-network rates; out-ofnetwork allowed amounts; and fee-for-service prescription drug costs. Some noted that the feefor-service prescription drug costs file could be potentially duplicative and overlap with reporting requirements of Section 204 of Division BB of the CAA, 2021. In response to these concerns, enforcement of the fee-for-service prescription drug cost requirement for MRFs was deferred indefinitely by FAQs Part 49, Q1. The departments have now concluded that there is no “meaningful conflict” between these two sets of requirements and rescinded that guidance in September in FAQs Part 61, Q1. The departments will instead address enforcement decisions on a case-by-case basis, as facts and circumstances warrant, and they intend to develop technical requirements and an implementation timeline in future guidance to account for any reliance plans that issuers may have developed on the enforcement deferral. JANUARY 2024


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Through FAQs Part 61, the departments also rescinded the blanket enforcement safe harbor of TiC final rules’ disclosure of certain in-network rates as dollar amounts, as described in FAQs Part 53. Enforcement discretion will be case-by-base and fact-specific, and plans must demonstrate compliance with the relevant provisions of TiC. Final rules would have been extremely difficult or impossible, including for reasons stated in FAQs Part 53. The departments stated that plans and issuers that are unable to determine dollar amounts for the in-network rate element should continue to follow the existing technical guidance on GitHub for percentage-of-billedcharges arrangements. Reminder! TiC’s cost share estimate tool is being phased in, with only the 500 services identified by the Department of Health and Human Services (HHS) (if covered by the plan) required to be available for plan years beginning on or after January 1, 2023. For plan years beginning on or after January 1, 2024, all covered services under the plan must be included in the tool. ELECTRONIC FILING OF FORMS


On February 23, 2023, the IRS published a final regulation in the Federal Register for electronic filing of returns and other documents, including Forms 1094-C and 1095-C. This final regulation reduced the prior

mandated electronic filing threshold of 250 forms to just 10 for forms due in 2024. In calculating the number of forms, filers need to aggregate almost all form types covered by the final regulation, including Forms W-2, 1094-C, 1095-C, and 1099. The practical effect this will have on applicable large employers (ALEs) for purposes of ACA reporting requirements is that all ALEs will be filing electronically because of the 50 full-time or full-time equivalent threshold to be classified as an ALE. The penalty for failure to file, or failure to file a correct form, for 2023 Forms 1094-C and 1095-C filed in 2024 is $310 for each form, with the total penalty for a calendar year not to exceed $3,783,000. The per-form penalty can be increased for intentional disregard. Waivers are available for reasonable cause and not willful neglect.

Practice Pointer: If an employer was under the 250-form threshold in the past and not filing electronically, the employer will likely need to find a vendor to properly and timely file Forms 1094-C and 1095-C in 2024. INDEPENDENT DISPUTE RESOLUTION PROCESS

Litigation, pauses in process, and backlogs have stymied the federal IDR process ever since it was introduced by the No Surprises Act in CAA, 2021. The departments have had to pause and resume processing of disputes several times in 2023 due to court opinions that vacated portions of the regulations governing the federal IDR process. As of October 6, 2023, the departments have reopened the federal IDR portal for the initiation of certain new single and bundled disputes, but processing and initiation of batched disputes and initiation of new air ambulance disputes remain temporarily suspended as of early November. The departments are conducting a phased reopening of the portal and should be making additional announcements regarding other suspended dispute categories soon. A timeline of these developments and the departments’ responses can be found on CMS’s webpage about payment disputes between providers and health plans. Some of the more salient developments include: Federal IDR Fee: On August 3, 2023, the Eastern District of Texas invalidated the increased federal IDR $350 fee for 2023 (up from $50), and, consequently, disputes initiated after August 3, 2023 reverted to $50. In response to the district court’s decision, the JANUARY 2024


departments issued a proposed rule in September that would set the fee at $150 as of January 1, 2024. Qualifying Payment Amount: The calculation of the qualifying payment amount (QPA) also remains a contested feature of the federal IDR process. On August 24, 2023, the Eastern District of Texas, as part of the ongoing Texas Medical Association litigation, invalidated several provisions of the interim final regulations, including but not limited to the rule that plan sponsors could calculate the QPA based on its service provider’s book of business. In FAQs Part 62, the departments stated that they would not be issuing further guidance on the calculation of QPA but expected a good-faith reasonable interpretation of the applicable regulations in light of this decision. The departments are exercising enforcement discretion in allowing plans to continue to use the definition of QPA before this decision until May 1, 2024, with a possible extension until November 1, 2024. On October 20, 2023, the departments appealed this decision to the Fifth Circuit. New Proposed Regulations for the IDR Process: On November 3, 2023, the departments published a notice of proposed rulemaking (NPRM) in the Federal Register that proposed new requirements in the federal IDR process. The departments address the following in the NPRM: •

Communications between providers, payers, and certified IDR entities: o Requires plans or issuers to use claims adjustment reason codes and remittance advice codes o Payers must include with the QPA a statement notifying the provider of a 30-business-day period for open negotiation

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Allows a 30-business-day open negotiation period before the federal IDR process

Requires an IDR initiation and response notice

Establishes an overflow eligibility review system by HHS when the dispute volume is high

Proposes additional ways to collect fees directly from parties

Allows more flexibility for batching

Creates an IDR Payer Registry for plans and issuers subject to the federal IDR process. Registry is required for: o

Each group health plan subject to the IDR process


Issuers of individual and group policies


Federal Employees Health Benefits Program carriers

The preamble to the proposed regulations highlights that the current process is hampered by ongoing disputes as to whether a claim is subject to an IDR, as well as confusion in identifying the correct plan or provider. Notices and communications that were outside the federal portal, such as the open negotiation process, would go through the federal portal with much more detailed information on the parties, the actual claims in dispute, the basis upon which the claim is subject to the IDR process, the exchange of offers, etc. Under the proposed revised process, the departments believe that the IDR entities would be in a position to make a decision on IDR eligibility without the back-and-forth communication between the parties and the IDR entity that occurs currently. Further, directing these steps through the portal would eliminate disputes on whether a party acted in a timely manner under the tight timeframes of the IDR process. 2023 DEVELOPMENTS IN ACA PREVENTIVE SERVICES AND CONTRACEPTIVE COVERAGE

Braidwood Management v. Becerra In March 2023, a U.S. district court issued an opinion and order under Braidwood Management v. Becerra, invalidating ACA preventive care requirements recommended by the U.S. Preventive Services Task Force (USPSTF). Initially, all actions taken by the Department of Labor (DOL), HHS, and the IRS to enforce or implement the preventive care coverage requirements in response to an “A” or “B” recommendation by the USPSTF made on or after March 23, 2010 were vacated, and the agencies were enjoined from enforcing these requirements. In June, the Fifth Circuit granted the government’s motion for a partial stay of the injunction pending appeal after the parties reached an agreement. Final disposition of this case is likely to take some time, but if the district court’s opinion is ultimately upheld, the following ACA preventive services mandates would be unenforceable: screenings for breast, cervical, colorectal, lung, and skin cancer; screenings for diabetes, depression, hepatitis, and vision problems in children; screening and treatment for HIV, including PrEP; and care for those who are pregnant and breastfeeding and care for their young children. Shortly after the March opinion and order were issued, and before the government prevailed in its motion for a partial stay, HHS, the DOL, and the Department of the Treasury issued FAQs Part 59 on April 13, 2023. Although the partial stay of the injunction renders the information in the FAQs less urgent, plans and issuers should still be mindful of the following in the event the district court opinion is upheld in whole or in part: 28


The Braidwood outcome only affects recommendations by the USPSTF on or after March 23, 2010 and does not have an effect on Advisory Committee on Immunization Practices and Health Resources and Services Administration recommendations.

States can still require coverage for fully insured plans.

Any mid-year changes would still be subject to the advance notice requirement for summaries of benefits and coverage and the 60-day notice requirement for a summary of material modifications following a material reduction.

USPSTF recommendations after March 23, 2010, will still be considered preventive care for purposes of HSA eligibility.


New and updated guidelines for preventive services that were issued in December 2021 went into effect for calendar plan years beginning January 1, 2023. Included are: •

Updated guidelines on breastfeeding services and supplies, including double electric breast pumps.

Screening for HIV infection for all adolescent and adult women ages 15 and older at least once during their lifetime and risk assessment and prevention education beginning at age 13.

Pre-pregnancy, prenatal, postpartum, and interpregnancy well-woman visits.

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Counseling to prevent obesity in women ages 40 to 60 years with normal or overweight body mass index. Previously only covered obesity.

The “full range of U.S. Food and Drug Administration (FDA)- approved, -granted, or -cleared contraceptives, effective family planning practices, and sterilization procedures be available as part of contraceptive care.”

Practice Pointer: Review any plan exclusion for maternity services for dependents/daughters to make sure preventive pregnancy-related services are covered even if other maternity services are excluded. Review plan exclusions for weight loss to make sure preventive services are covered. PROPOSED RULE TO ELIMINATE THE MORAL OBJECTION AND ESTABLISH INDIVIDUAL CONTRACEPTIVE ARRANGEMENT

On January 30, 2023, the Department of the Treasury, the DOL, and HHS released a notice of proposed rulemaking related to certain preventive services under the ACA. The proposed changes include rescinding the moral exemption rule (while maintaining the existing religious objection) and establishing a new individual contraceptive arrangement to facilitate the provision of contraception, cost-free, to individuals enrolled in plans sponsored by an objecting entity. Under the current 2018 final regulations, certain types of employers identified in the final rule that sponsor group health plans and have a moral or religious objection to contraceptive coverage do not have to provide that coverage. These objecting employers have the option to provide an accommodation whereby they do not have to contract, arrange, pay, or refer an individual for contraceptive coverage, but contraceptive services are still available through an insurer or TPA. Many objecting employers do not provide the optional accommodation. The proposed rule would provide a new pathway where individuals in plans of objecting employers that do not provide the accommodation could obtain contraceptives at no cost through an “individual contraceptive arrangement” with a willing provider. Through that arrangement, the provider would be able to seek reimbursements from an insurer on the Exchange who has signed an agreement to provide the coverage. The insurer would then be entitled to an adjustment of an Exchange user fee. GAG CLAUSE ATTESTATION

Group health plans are required to submit an annual gag clause compliance attestation by December 31, 2023 to HHS, which is collecting the attestations on behalf of itself, the DOL, and the Department of the Treasury. The attestation is required to confirm that certain contracts do not prevent disclosures of cost, quality of care data, or certain other information required as part of the CAA, 2021. CMS has posted several compliance resources on its website, including:


Annual Submission Webform Instructions that provide an overview of the process.

User Manual for making attestations through the Health Insurance Oversight System that walks through the submission process step by step with screenshots from the webform. THE SELF-INSURER


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FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 57 (FAQs Part 57), issued by the departments on February 23, 2023.

Highlights of gag clause attestation requirements •

Plans subject to gag clause attestation requirement: The annual attestation requirement applies to most group health plans subject to the ACA, without regard to grandfather plan status, including both self-insured and fully insured ERISA plans, church plans, nonfederal governmental plans.

Plans not subject to gag clause attestation requirement: Account-based plans, such as HRAs (even if otherwise subject to the ACA) and health FSAs, and excepted benefit plans (e.g., hospital indemnity, some EAPs, some onsite clinics, dental, vision, long-term care) are not required to submit attestations. The gag clause attestation also does not apply to stand-alone retiree health plans.

Covered period for initial attestation: The initial attestation due at the end of this year covers the period beginning December 27, 2020 (or the effective date of the applicable group health plan, if later), through the date of attestation. The attestation requires the attester to confirm that the plan has not, since December 27, 2020, entered into any agreement with a provider, network of providers, TPA, or any other service provider offering access to a network or association of providers that contains any prohibited gag clause.

Types of contracts subject to the attestation requirement: The gag clause rules apply to agreements with providers, network of providers, TPAs, or any other service provider offering access to a network or association of providers.

Entity responsible for making the attestation: Insurers and self-insured plans are each responsible for their own plans. Self-insured plans can authorize a TPA or other service provider to be the official attesting entity and submit the attestation on behalf of the entire plan or subset(s) of plan benefits, but the plan is ultimately responsible if the TPA fails to make the attestation.

Enforcement action for self-insured plans: Regardless of whether the plan or the TPA submits the attestation, the plan is ultimately responsible if there is a failure to submit an attestation on time. The agencies state in FAQs Part 57, Q7 that failure to submit timely attestations may subject the plan to enforcement action, without specifying what type of action. Presumably, the general penalty of $100 per day under the Internal Revenue Code could be applied, but it isn’t clear if this would apply per attestation or per person affected by the violation.

Practice Pointer: Going forward, in addition to carefully reviewing new administration agreements for gag clauses (and removing them), plan sponsors should also include affirmative language that clarifies their right to disclose provider-specific cost/quality of care through a consumer engagement tool or other means, access certain de-identified claims and claim encounter information, and share with business associates as permitted by privacy laws. 32



Proposed HIPAA Privacy Rule for confidentiality of reproductive healthcare On April 17, 2023, the HHS Office for Civil Rights (OCR) issued an NPRM to modify the HIPAA Privacy Rule. The NPRM, which only applies to covered entities, health plans, providers, healthcare clearinghouses, and their business associates (which the OCR refers to as “regulated entities”), is one of the actions taken pursuant to Executive Orders issued in response to the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision. The NPRM creates a new category of protected health information (PHI) called “reproductive healthcare,” which is defined as “care, services, or supplies related to the reproductive health of the individual” in 45 CFR §160.103. This would be a specially protected category of sensitive PHI similar to psychotherapy notes and would include a broad range of services, treatments, and care. The NPRM also offers protection against prohibited disclosures of this new category of PHI. Earlier postDobbs guidance provided that HIPAA-covered entities, including health plans, could only disclose PHI related to reproductive healthcare in the case of a law that expressly compels a covered entity to disclose the PHI and is enforceable in court. The NPRM would go further and amend 45 CFR §164.502 to prohibit disclosures for non-healthcare purposes, even in the case of a court order or search warrant enforceable in court. These non-healthcare purposes are aimed at protecting a person from investigations or proceedings related to legally obtaining reproductive care. The NPRM proposes that neither a HIPAA authorization nor

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the permissions under 45 CFR §164.512 (relating to uses and disclosure required by law) could be used to bypass the purpose-based prohibition and would require a covered entity to obtain a signed and dated attestation when it receives a request for PHI potentially related to reproductive healthcare that the use or disclosure is not for a prohibited purpose. If the NPRM becomes final in its proposed form, plan sponsors and business associates need to be mindful of the following: •

The NPRM proposes to modify 45 CFR §164.520 regarding HIPAA Notice of Privacy Practices to add new provisions explaining that the HIPAA Privacy Rule would prohibit the use or disclosure of PHI in certain scenarios relating to reproductive healthcare.

Employers that sponsor covered health plans will need to develop, implement, and maintain compliance documentation in response to the final rule. This includes:


An attestation form


Updated business associate agreements


Policies, procedures, and training materials

Per the NPRM, when a final rule is issued, the total timeframe for compliance would likely be 240 days (60 days from the publication of the final rule plus 180 days).


On December 1, 2022, HHS’s OCR issued the bulletin Use of Online Tracking Technologies by HIPAA Covered Entities and Business Associates, which was followed by a joint letter published by the OCR and the Federal Trade Commission on July 20, 2023, sent to approximately 130 hospital systems and telehealth providers. The letter alerts recipients about the risks and concerns related to the use of technologies, such as Meta/Facebook Pixel and Google Analytics, that can track a user’s online activities. A lawsuit filed in October 2023 against Piedmont Healthcare Inc. cites the letter in its complaint, which alleges that the tracking technologies allowed Meta to have access to nonpublic personally identifiable information and PHI such as the type and date of medical appointments, the name of the provider, medical conditions, and treatment without notifying individuals that their information would be shared, which allegedly violates HIPAA and various other state laws.

Practice Pointer: HIPAA-covered plan sponsors should monitor vendors’ use of embedded tracking technologies as directed by HHS in the 2022 guidance 2022. OTHER HIPAA NEWS

On February 17, 2023, the OCR shared two reports with Congress for 2021: •


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The OCR frequently noted in the reports the continued need for regulated entities to improve the compliance with the HIPAA Security Rule requirements, including risk analysis and risk management; information system activity review; and audit and access controls. PROPOSED STLDI AND EXCEPTED BENEFIT REGULATIONS

On July 12, 2023, federal regulators proposed changes to short-term, limited-duration insurance (STLDI) and fixed indemnity excepted benefits. Regulators believe that consumers may confuse these types of coverage with a more comprehensive (and more expensive) coverage option that complies with the ACA and choose these less expensive options instead. The new proposed changes would affect STLDI coverage in a few ways: •

Cut back the less-than-12-months term to no more than three months after the effective date of the contract.

Cut back the total duration of an STLDI contract from 36 months to no more than four months in total for renewals and extensions.

Prohibit stacking so that an individual could not obtain a new STLDI policy from an issuer within 12 months of the effective date of a previous STDLI policy, if from the same issuer.

The proposed rule would also impose new restrictions on certain supplemental fixed indemnity health benefits. In particular, the proposed rule would impose significant new limitations on the structure of



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hospital indemnity and other fixed indemnity supplement benefits. The proposed rule would also change the tax treatment of benefits under all health indemnity policies (fixed indemnity as well as benefits under specified disease policies such as cancer or critical illness policies). The proposed rule also requested comments on additional issues. The comment period closed on September 11, 2023, and the agencies have reported receiving over 15,000 comments. MENTAL HEALTH PARITY AND ADDICTION EQUITY ACT PROPOSED RULE FOR NQTLS

On July 25, 2023, the IRS, the DOL, and HHS released new proposed regulations under the MHPAEA that, if finalized, would provide significant clarifications and new compliance obligations for group health plans and issuers subject to the MHPAEA’s provisions (Proposed Rules). The DOL was originally accepting comments (on behalf of the departments) through October 2, 2023, but due to the “considerable interest expressed” in the Proposed Rules, the departments extended the deadline through October 17, 2023. Highlights of the new proposed rule •

Creates three new requirements for non-quantitative treatment limitations: o “No more restrictive” requirement. The “substantially all/predominant” test currently applicable to quantitative treatment limitations (QTLs) would also apply to non-quantitative treatment limitations (NQTLs), which means that an NQTL would need to apply to at least two-thirds of the medical/surgical benefits (Med/Surg) in one of the MHPAEA classifications (i.e., inpatient, in-network; inpatient, out-of-network; outpatient, in-network; outpatient, outof-network; emergency care; and prescription drugs) for the NQTL to apply to any mental health/substance use disorder (MH/SUD) benefits in the same classification. In addition,

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only the predominant variation (meaning the most common or frequent) of the NQTL can apply. o Design and application requirements. NQTLs would be subject to an enhanced “design and application” requirement under which the NQTL analysis will also apply “in designing and applying the limitation.” The processes, strategies, evidentiary standards, or other factors (terms that are defined for the first time in these Proposed Rules) used in designing and applying the NQTL to MH/SUD benefits would need to be comparable to, and applied no more stringently than, those used in designing and applying the NQTL to Med/Surg benefits within the same classification. o Data gathering requirement. In designing and applying an NQTL, plans and issuers would need to collect and evaluate relevant data to assess the impact of an NQTL on MH/SUD compared to Med/Surg and to determine whether there are material differences in access to MH/SUD benefits compared to Med/Surg benefits based on this data. There is also an additional data collection requirement specific to network composition. Technical Release 2023-01P, issued at the same time as the Proposed Rules, provides technical details on this requirement. 


Material differences. For NQTLs other than network composition, a “material difference” in the metrics/data gathering for the NQTL as applied to MH/SUD and medical/surgical benefits would be a “strong indicator” of a violation, and the Proposed Rules detail action that should be taken. For NQTLs related to network


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composition, a material difference would indicate an actual violation. Comments were sought on how to define “material difference.” •

Requires meaningful benefits in each classification (expansion of 2013 rule). The 2013 final rule for the MHPAEA made it clear that if a plan or issuer provides MH/SUD benefits in any of the six classifications of benefits (i.e., inpatient, in-network; inpatient, out-of-network; outpatient, in-network; outpatient, out-of-network; emergency care; and prescription drugs), the MH/SUD benefits must be provided in every classification in which Med/Surg benefits are provided. The Proposed Rules add that this requirement would not be satisfied unless the MH/SUD benefits provided in each classification are “meaningful benefits” when compared to the Med/Surg benefits in the same classification, and comments were sought on how to define the term.

Codifies, reorganizes, and expands CAA, 2021 NQTL comparative analysis requirements. The Proposed Rules would amend existing guidance, set more specific content requirements for comparative analyses, clarify when the comparative analysis needs to be performed and for which NQTLs, and outline the timeframes and process for plans and issuers to provide their comparative analyses to the departments upon request. The Proposed Rules also require a certification of the comparative analysis by one or more named fiduciaries stating whether they found the comparative analysis to be compliant with the requirements outlined in the Proposed Rules.

Provides detail on DOL action for inadequate NQTL comparative analysis. The Proposed Rules would allow a plan or issuer a minimum of 10 business days to respond to a request from the DOL for a comparative analysis, and a minimum of 45 calendar days to respond to the DOL’s initial



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determination of noncompliance with a corrective action plan. If the DOL still determines that the plan or issuer is not compliant, the non-compliant plan or issuer would be required to provide notice of noncompliance to participants and beneficiaries within seven calendar days of the receipt of the final determination of noncompliance. A copy of the notice would need to be sent to the DOL, any service provider involved in claims processing, and any fiduciary responsible for deciding claims within the same timeframe. •

Confers ERISA 104(b)(4) status on NQTL comparative analysis. The Proposed Rules would treat the comparative analysis like an instrument under which the plan is established and operated, thereby allowing participants and beneficiaries to request the comparative analysis to be provided upon request within 30 days. Plan administrators can face up to a $110 per day penalty for not complying with such a request.

Sunsets CAA, 2023 opt-out for state and local governmental plans. The Proposed Rules would implement the sunset provisions of the CAA, 2023 that ended the ability of state and local governmental plans to opt out of the MHPAEA.

In addition to the Proposed Rules, the DOL issued Technical Release 2023-01P, which provides technical details, includes a request for information concerning this data gathering, and discusses a possible safe harbor on network composition based on the data gathering requirements in the Proposed Rules. More detail on the Proposed Rules and the Technical Release can be found in our August 2023 advisory. 2023 MHPAEA REPORT TO CONGRESS

The departments released the second report to Congress on the MHPAEA comparative analysis for NQTLs. This report for the first time, as required by the CAA, 2021, names specific plans that were found by the agencies to not be compliant with the comparative analysis requirement. Practice pointers: •

Carefully review the report to Congress and the DOL’s recommended compliance tools.

Develop a practice of regularly checking for what is (and is not) a compliant NQTL, as this is a constantly developing area of MHPAEA compliance.

Carefully review your plan’s NQTL analysis to ensure it includes statutorily required elements.

For self-insured plans, consult legal counsel and review your agreement with your TPA to ensure that the responsibilities of the TPA and the employer with respect to preparing a proper and comprehensive NQTL comparative analysis are included in that agreement.


Air Ambulance. Proposed regulations for the No Surprises Act indicated that 2022 reporting for air ambulance would be due March 31, 2023, and 2023 reporting would be due March 31, 2024. Section 106 of the Act is clear that reporting is not required until “a final rule is promulgated.” Because no final rule has been promulgated, CMS confirmed on its website that reporting is not due until there are final regulations. Patient-Centered Outcomes Research Institute (PCORI) Fees. For plan years ending on or after October 1, 44


2023 and before October 1, 2024, the updated PCORI fee amount is $3.22 times the average number of covered lives under the plan, up from $3.00. (IRS Notice 2023-70). DOL Proposed Investment Fiduciary Rule. On November 3, 2023 a new investment advice fiduciary proposed rule was published in the Federal Register. The proposed rule reinstitutes the broad investment fiduciary definition and best interest requirement for certain investment fiduciaries (PTE 2020-2). Although this rule will primarily affect retirement plans, it also applies to HSAs. Section 1557 Proposed Regulations. HHS published proposed regulations in August 2022 for ACA’s nondiscrimination requirements under Section 1557. These nondiscrimination rules import the protections against sex discrimination (among others) under Title IX of the Education Amendments of 1972. The Biden Administration has stated that it interprets sex discrimination to include discrimination based on sexual orientation and gender identity, arguing that this interpretation of Title IX is permitted as a result of the Supreme Court’s interpretation of sex discrimination under Title VII in Bostock v. Clayton County, but a Texas judge later set this interpretation aside for plaintiffs and members of the class in Neese v. Becerra. Litigation under Section 1557 for transgender healthcare is active and evolving, yet despite (or perhaps because of) this litigation, the proposed regulations have not yet been finalized. Copay Accumulator Litigation. In September, a U.S. district court vacated a 2021 rule that allowed plans and insurers to exclude drug manufacturer coupons and copay assistance from a participant’s annual out-of-pocket maximum. The 2021 rule allowed plans and insurers to exclude the portion of drug costs covered by such coupons or assistance to the extent consistent with applicable state law, meaning that participants would have to continue to pay out-of-pocket costs for other services and treatments until the annual maximum is reached. Prior to the 2021 rule, CMS had issued a final rule that allowed such costs to be excluded from the calculation of annual out-of-pocket maximums, but only if a generic equivalent were available. Given that the 2021 rule has been invalidated just as many employers are beginning annual open enrollment, some plans and insurers are asking whether either rule is valid and whether CMS has the authority to require such rules through its rulemaking process for insured plans. CMS has filed a motion with the court seeking further clarification. 2024 HEALTH BENEFIT ADJUSTMENTS

Included in the table below are 2023 and 2024 indexed amounts for some of the health-benefit-related limits and caps: BENEFIT HSA contribution max (including employee and employer contributions)

2024 $4,150/$8,300 Rev. Proc. 2023-23

2023 $3,850/$7,750 in 2023

HSA additional catch-up con- $1,000 tributions


HDHP annual deductible minimum

$1,500 in 2023



$1,600 ($3,200 family)

Limit on HDHP OOP expenses $8,050 ($16,100 family)

$7,500 ($15,000 family)

ACA limit on OOP expenses

$9,450 ($18,900 family)

$9,100 ($18,200 family)

Limit on amounts newly available under an excepted benefit HRA



Health FSA salary reduction max Health FSA carryover max BENEFIT QSEHRA max reimbursement Transit and parking benefits 401(k) employee elective deferral max Highly compensated employee



$640 2024 $6,150 ($12,450 family) $315 (monthly) $23,000 (catch-up contributions $7,500) $155,000 ($150,000 applies for 2024 plan year under look-back rule) Key employee $220,000 ACA pay-or-play affordability 8.39% threshold for 2024 Federal poverty level (FPL) $14,580; for employers for U.S. mainland that use the FPL safe harbor, required employee contribution for self-only coverage cannot exceed $101.93 per month

$610 2023 $5,850 ($11,800 family) $300 (monthly) $22,500 (catch-up contributions $7,500) $150,000 ($135,000 applies for 2023 plan year under look-back rule) $215,000 9.12% $13,590; for employers that use the FPL safe harbor, required employee contribution for self-only coverage cannot exceed $103.28 per month

About the Authors Attorneys John R. Hickman, Ashley Gillihan, Steven Mindy, Carolyn Smith, Ken Johnson, Amy Heppner, and Laurie Kirkwood provide the answers in this column. John is partner in charge of the Health Benefits Practice with Alston & Bird, LLP, an Atlanta, New York, Los Angeles, Charlotte, Dallas and Washington, D.C. law firm. Ashley and Steven are partners in the practice, and Carolyn, Ken, Amy, and Laurie are senior members in the Health Benefits Practice. Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice to the questioner’s situation. Any legal issues should be reviewed by your legal counsel to apply the law to the particular facts of your situation. Readers are encouraged to send questions by e-mail to John at





Written by Laura Carabello


s the popularity of self-insured group health plans and captive insurance continues to rise and as the industry continues to evolve, career opportunities abound. SIIA is uniquely positioned to guide this growth and launched the Future Leaders Initiative in 2018. This included the formation of a designated committee comprised of younger members tasked with helping the association develop membership services that can help these rising professionals be more valuable to their employers and better focus their careers within our industry. Erin Duffy, Director of Business Development, Imagine360, serves as committee chair and enthusiastically leads the 20+ member group, which engages a growing number of individuals wanting to join.




“Our group is responsible for planning an annual forum for individuals under the age of 40 who identify as being at a company involved in the self-insurance industry -- anything from TPAs, pricing companies, captives, telehealth organizations or others. We’re already planning our next one slated for April 9-10, 2024 in Kansas City and encouraging all those who have interest to join us,” commented Duffy. The event promises to be a mix of personal and professional development as well as networking within this industry and connecting with their peers. For example, there’s an opportunity for professionals currently associated with a stop-loss company to meet TPAs and put a face to a name. Last year’s event drew 150 people, including a speaker who addressed ‘mindfulness,’ as well as a presenter from the SAP Political Action Committee who spoke about the work that they do in this industry and how to get involved. There was also a panel on hiring that discussed virtual versus in-person hybrid employment – which continues to be top-of-mind.

The employment situation in the U.S. is somewhat static, as the U.S. Bureau of Labor Statistics reported in October 2023 that the unemployment rate changed little at 3.9 percent. Total nonfarm payroll employment increased by 150,000 in October, with job gains occurring in healthcare, government, and social assistance. Employment declined in manufacturing due to strike activity. Morningstar predicts that the job market will steadily return to its pre-pandemic self. They expect a further slowdown in job growth throughout the first half of 2024, but labor market expansion should continue in 2025 and 2026. A slight rebound is anticipated in productivity between now and 2027 and they forecast that labor force participation will recover ahead of prepandemic rates as widespread job availability pulls in formerly discouraged workers. The job market in the selffunding and digital health sectors has shifted, advises Brian E. Howard, J.D., CSFS, CCMC, Certified Self-Funding Specialist, Certified Career Management Coach, The Howard Group, Inc.

Source: U.S. Bureau of Labor Statistics

“For self-insurance, hiring has slowed but is still healthy, primarily due to the ability of these services to curb the relentless surge in healthcare costs,” says Howard. JANUARY 2024


“Nevertheless, identifying and securing well-qualified candidates still presents a considerable challenge.”

“To most people, insurance isn’t seen as innovative, cutting edge or sexy. It’s often seen as conservative and boring.” But he says this actually is a misnomer, adding, “As an industry, we need to do a better job in selling the industry to compete with the technology and other “interesting” industries. Without insurance, much of what we know and do would cease.”

Mike Waterbury, CEO


Goodroot CEO Mike Waterbury offers this perspective, “The selffunded space is so specialized and complex, that innovations in the industry essentially have to come from within. Experienced professionals in self-funding often have knowledge and a unique perspective that helps them see ways to transform the industry. Silicon Valley isn’t going to come “disrupt” this space — we have to do it.” Realistically, the insurance industry has been challenged for decades in attracting fresh talent, a perspective offered by Joe Dore, President of USBenefits Insurance Services. “To add to the complexity, much of the industry hasn’t invested into any formalized training for new talent,” he observes. 50


Dore advises employers to be realistic that today’s work environment has been reshaped by social media, pandemic, and other variables. Additionally, many employees face career and financial challenges whereby mitigating their appreciation of the benefits of long-term commitment. Therefore, to attract and retain the best team members, employers must be open to new ideas. While everyone recognizes the pandemic led to seismic shifts in the employment landscape, there are unique considerations for those seeking employment in the self-funded arena. It is important to understand the dynamics to craft a more successful job search and to address longer-term career implications. Steve Suter, COO, MacroHealth suggests that while we may never go back to office environments that existed before the pandemic, employers are looking for candidates with the following qualities: Joe Dore

An ability to travel, sometimes with very short notice, as the post-pandemic landscape changes and workplace policies change at the workplaces of prospects and clients.

A willingness to regularly be onsite with prospects and clients.

Outstanding communication skills and the ability to form meaningful connections with prospects and clients both remotely (via Zoom, Teams, etc.) and in person.

Demonstrated resilience where candidates have worked through challenging business situations and have been part of a turnaround or dynamic growth story.

Jourdan McSweeney, Director of Operations, Radion Health, advises, “In today’s job market, several factors are impacting the hiring

process. The competition for qualified candidates has intensified significantly. As a hiring leader, it’s crucial to act promptly when considering a candidate because they are likely to receive other job offers while you deliberate.” She says that given the prevalence of talent shortages, competitive compensation packages, and the growing availability of remote work Steve Suter opportunities, employers should prioritize the development of attractive benefits packages, underscore their workplace culture and inclusion efforts, and expand professional and personal development opportunities for employees who seek growth within the company or their respective industry.

letter that underscore their expertise in risk management, cost containment, and regulatory compliance—key priorities for self-funded insurers,” she continues. “Job seekers should also leverage professional networks and industry events. This can be done through specialized job boards and platforms that connect insurance professionals within the selffunded realm. The self-funded marketplace values creativity and innovation, so be bold and showcase your approach to problem-solving.”

“These adjustments could make an opportunity much more attractive to even a passive candidate in the industry,” says



Today, there is increased recognition that talent challenges are shared globally. Kari L. Niblack, J.D., SPHR, President, Captive Solutions, explains, “Factors such as market conditions, geographic location, and industry trends have a tremendous impact on talent attraction and retention, but so too, do qualifications. In some cases, talent attraction is impacted by the highly specialized nature of roles within the selfinsurance landscape.” She says that positions requiring expertise in risk management, actuarial sciences, and regulatory compliance may encounter a shortage of qualified candidates. Niblack advises individuals seeking a job in the selfinsurance marketplace to acquire a comprehensive understanding of the sector’s dynamics, regulatory landscape, and emerging trends. “That landscape will enable them to craft a targeted resume and cover

Nick Soman, CEO

Nick Soman, CEO, Decent, says when candidates understand the unique significance and opportunity of self-insurance to change insurance and benefits for the better, “…it kindles their passion and commitment. Organizations that can powerfully and transparently share their vision get more attention and interest from candidates driven by purpose. This ensures a higher success rate in recruitment and more impactful work.”

Jourdan McSweeney



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over the past six months, and this transformation is likely to continue. Successful recruiting requires us to broaden our horizons and look beyond our own industry as there are interesting similarities in other sectors where skill sets are easily transferrable.” As an example, Bounce refers to the mortgage and financial lending industry, adding, “Candidates recruited from this sector understand contract language and rules, and have experience in building strong customer relationships. These factors alone have made their transition to the world of self-insurance surprisingly successful.” Sally Pace, CEO


Here’s a tip from Sally Pace, CEO, CHC-Now, who says that her team leans into young talent. “Specifically, we work with colleges to build out a robust internship program. This helps us fulfill two business objectives: First, we can bring on a number of bright young minds to tackle project-based work, and in turn, expose them to the world of selffunding. Second, it builds out our talent pipeline because we’ll often have interns who stick with us for many semesters and then choose to start their careers with us.” She explains that these employees already have industry knowledge and come into their fold with a fresh perspective, adding, “We’ve had vendor partners comment how much they appreciate that we bring eager minds into the meeting who can help all of us challenge the status quo.” Here’s an important “heads up” from Michelle Bounce, President, J.P. Farley Corporation, “The self-funding job market has undergone significant changes

She says that attracting talent from diverse sector backgrounds will not only benefit organizations such as J.P. Farley Corporation but will also secure a robust future for the industry. “While new perspectives are essential, it’s crucial that the candidates leave behind the notion that a degree alone or experience in a different market guarantees success,” she explains. “Patience and a willingness to learn are critical, as self-funding is a complex industry with a steep learning curve.” Bounce is quick to point out that as new candidates successfully transition into the self-insurance space, more and more are excited by the raw potential of this field: “Self-funding offers constant opportunities to positively impact U.S. healthcare and create meaningful change, making it one of the most compelling industries to be a part of.” Some employers or vendor members of the SIIA community may be struggling to attract staff and talent. Thomas Stein, Principal and CEO, American Trust Administrators, advises, “The single best recruiting tool is your current team’s engagement. Keep them satisfied and engaged with interesting work coupled with the trust needed to not be paralyzed by fear of failure, and your churn rate will decrease.” He points to a bifurcation in the culture: “The traditional organizations are losing the team members that are more associated with the remote culture, and conversely, the remote culture new hires that place more value on connection at the workplace are returning to the traditional organizations. With this as a driver of the reshuffle, the different groups of people are looking through different lenses to evaluate the value of the organization to the individual team Kari Niblack member -- pay, community, purpose identity.” JANUARY 2024


Stein says individuals approaching their job search in the self-insured marketplace should take any road that will lead them to the desired destination, especially if they don’t know where they are going. “When individuals look at their career paths and the opportunities before them, the end should be in mind with a bias towards action,” he explains. “Most frontline employees work to live, so boards and executives would be wise to keep this in mind and take time to show their current team that they are appreciated. This is a no-brainer, as existing staff are the ones who actually do the work. The other side of this coin is that you will have lower turnover if you follow this route, reducing the need to recruit to begin with.” IMPACT OF TIGHTENING LABOR MARKET AND A.I.

Todd E. Archer, President, Concierge Third Party Administrator, says the quest to attract and retain the talent needed to fulfill the mission of his business is going to require changes in how they approach some fundamental aspects of our approach. “As the baby boomers exit the workforce in increasingly larger numbers, and the employment market contracts because of the smaller numbers in subsequent generations, a tightening labor market is going to require us to rethink both our H.R. and technology approaches,” advises Archer. “These generations that must be attracted and retained respond to things differently than the previous generations, and employers must be open to innovative approaches in things like work/life balance, remote working, culture, social responsibility, and even in their own benefit offerings. The competition for qualified labor is going to increase, and addressing these things will be essential to success.”

The Conference Board Consumer Confidence Survey suggests that it is now easier to find a job but harder than in recent months. Employers will likely continue to struggle to fill job vacancies.



Archer believes that the other component that will become increasingly important is the use of artificial intelligence (A.I.). “While still in its infancy of widespread use, the rate of development has been very rapid, and it holds great promise in improving and even supplementing productivity of existing staff,” he expands. “While the technology is not perfect, it presents an excellent opportunity for us to examine existing processes and workflows to determine which are candidates for A.I. with little to no disruption in customers’ experience or, in some cases, even improvements in these areas. This twopronged approach will be the beginning of what will certainly be an interesting journey to what our workforce will become in the 21st century." SELF-INSURANCE VS. OTHER INDUSTRIES

As self-insurance industry employers face challenges to attract staff and talent, they look around and it appears there isn’t an industry that is exempt. Dani Kimlinger, PhD, MHA, SPHR, SHRM-SCP, CEO, Mines and Associates, says less flexible work environments seem to be struggling the most. Dani Kimlinger

“When COVID showed many employees that they could work from anywhere, it’s been hard for many to go back to

“Nearly all of MINES positions are remote, and less than 10 percent require 1 day per week in the office, such as processing paper claims. Having 95 percent of our positions be remote, we have seen a number of benefits: higher retention and satisfaction among our staff, higher productivity levels, and opening up the talent pool significantly.” working an 8-5 Monday-Friday in the office,” she says.

Kimlinger states that she is hearing from their clients that the uncertainty in economic times and inflation has impacted their hiring freezes and decisions to add positions. “Competition for talent is significant in our industry,” she shares. “In behavioral health, for example, we are competing with organizations that have significant funding and offer higher compensation packages, promises of innovation and growth.” She also sees that finding expertise and knowledge of the self-insurance industry, even among practitioners, can be a challenge. “Having an understanding of underwriting, risk management, legal and regulatory compliance with the combination of skills can be a tough combination to find,” admits Kimlinger. “The awareness and perception of self-insurance in our field can be a barrier. Self-insurance may be viewed as less dynamic and innovative.” For employers in this space, she advises companies to look at what “like” companies offer their employees and recruits. “In our industry, generous time off, remote working, comprehensive mental health and well-being benefits are incredibly important,” she says. “Our culture and commitment to our employees are the two most important parts of our value proposition.




Are young people prepared to go into the self-insured industry? Erin Duffy relates her personal perspective: “Unless you have a parent or a family friend that’s in the industry, I don’t know that this is necessarily an industry that jumps off of the career pages at your local college. When I was an undergraduate, I went to a career fair, and I had prepared ahead of time the list of organizations that I was planning to meet with. There were, of course, some that were unfamiliar, and one of them I ended up speaking to for about an hour. And it happened to be an international health insurance brokerage firm, which did not make my list of companies I was interested in because I didn’t know anything about it.” She cites the need for expanded education about jobs and opportunities – even from the early grades. “When we’re in elementary school, they teach us about the positions that you see out in the field, whether it’s a nurse or a doctor, a postal worker or a delivery person or a job in a grocery store. You’re not learning about what people are doing in the tall buildings across the country. Outside of becoming a lawyer, the topic of insurance is probably not being taught at an elementary level. As a society, we need to do a better job of showing what people can do and what they can be and the opportunities that exist.”

“I think that being on the older end of the SIIA Future Leaders -- I just turned 38 at the end of October -- it is incumbent on us to ensure that individuals of all ages really understand what the opportunities are and how they’re all connected. Frankly, I had never heard of this concept of reference-based pricing or really delved into the world of independent TPAs before I took on responsibilities at Imagine 360.”

“I do think that getting involved in SIIA as well as HCAA is important for companies,” she says. “It all comes back to networking. I think you always have to be networking and interacting with companies that are looking for up-and-coming talent.”

Duffy expresses her concern that most people don’t know that this industry exists. “Outside of having that one-hour conversation on a hundred-degree day in Peoria, Illinois as an undergraduate, which then led me to an internship program that ran for two summers in a row, I would never have had the opportunity for a full-time job in a business development sales role at an organization where I worked for eight years. Subsequently, I moved on to a much smaller, more entrepreneurial firm in 2016, where I began working remotely.” Duffy stresses the importance of getting information about the industry to younger audiences.



Todd E Archer, President

She recommends attending SIIA Forums – for companies as well as those who are seeking opportunities.

“They should be looking at who is attending these events and how involved they are in decision-making,” she notes. “Have they raised their hand that they want to be a part of something bigger? Are they expressing interest in the future of the industry? Are they writing articles on their LinkedIn page about the industry? Are they attending meetings or becoming a part of a committee? Michelle Bounce, President When organizations are looking for talent, they’re looking for wellrounded folks that are not just interested in a nine-to-five job but are also involved in their community and involved in their industry.”

Analytics – the ability to create, leverage and communicate via analytics to influence prospects and clients is becoming a premium skill. Candidates who can provision, manipulate, and visualize data to help convincingly explain the ROI of various solutions are paramount.

A.I./ML – Generative A.I. is one of the fastestgrowing fields across multiple industries, and it certainly has applications for the self-funded space. Self-funding has access to huge data sets and being able to leverage models to identify patterns and ‘needles in a haystack’ will become increasingly important. Candidates who can bring this skillset, married with the ability to communicate the ‘why’ behind the results, have a very bright future.

FP&A (Financial Planning & Analysis) – this is a skill set that has long been underserved in the self-funded arena. The ability to perform advanced modeling and forecasting to improve the management of Payer or Vendor businesses can be a difference-maker when it comes to scaling margins and understanding profitable growth.

Mike Waterbury observes, “It can be daunting for an individual to move from the stability of employment into entrepreneurship, but the potential benefit both to the innovator and the employers and members served by the self-funded industry is absolutely worth it.” He says there are ways to make this transition that minimize the

“Rather than applying for jobs they see posted or fully striking out on their own, self-insured visionaries can pitch potential employers on hiring them to bring their idea to life. There is also an increasing variety of investment models to support entrepreneurs. At Goodroot, for instance, we provide amplified services such as accounting, legal, marketing and H.R. so founders can focus specifically on their vision.” risk, noting,

A key consideration for those looking for a career in self-funding is the changing landscape for the types of skills needed and sought by employers and vendors. While payer, broker and other experiences remain highly relevant, there are a handful of skills that are becoming critical in the self-funded space. MacroHealth’s COO, Steve Suter, cites these:



Somebody has to come in second. Make sure it’s not you. There are no insurance MVP trophies, no best PowerPoint awards, no fantasy broker leagues. You show up first with the best option for your client, or you lose. We never take this for granted. That’s why we leverage all of our people, data and relationships to reach one goal: We help you win.

We help you win.

“Self-insurance continues to provide a relief valve for employers across the country looking for ways to take control of their healthcare spending,” says Suter. “The above considerations are critical for candidates and employers to be more competitive as the employment environment continues to shift rapidly. Those candidates who embrace these trends have a great opportunity to differentiate themselves and their value to their future employers.” Radion’s McSweeney offers this advice, “Job searching in any market can be a daunting task. As someone who recently transitioned into the self-funded career marketplace, I’ve observed that it’s a tight-knit community where networking and building

a strong online presence with industry peers can be invaluable. I’ve also noticed a shift in the mindset of hiring, moving from seeking candidates with experience in specific job titles to valuing those with adaptable skills in fast-changing environments.” Her primary advice for those entering the job search, in this market or

“Dedicate time and effort to professional growth, assess your interests, and clarify your career goals. Seek constructive feedback from mentors, and practice patience; persistence will eventually yield results.” any other, is to invest in self-development, adding,

Here’s a final word from Dani Kimlinger, who points to a number of self-insurance job boards that can be explored, such as the SIIA job board: “But I also recommend exploring bigger job boards, such as Indeed and LinkedIn. We love Indeed as we see that when we post positions, their A.I. assists in finding potential candidates and can invite those people to apply.”



When looking for a position in the self-insurance industry, she

“Tap into your network immediately. We all share when we are looking for key positions, in particular, and the power of networking cannot be emphasized enough. It’s a small world in the selfinsured industry!” advises,




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.

SIEF SCHOLARSHIP SEEDS NEXT GENERATION ASU master’s student awarded $2,500 toward his riskmanagement program


Written by Bruce Shutan


hile SIIA’s Future Leaders has been grooming the next generation of leadership since 2018, a recent initiative is seeding industry interest in college-age students. The Self-Insurance Educational Foundation, Inc. (SIEF), a 501(c)3 nonprofit organization affiliated with the Self-Insurance Institute of America, Inc., awarded a $2,500 scholarship to Adam Ray, a 23-yearold in the risk-management Master’s program at the W.P. Carey School of Business Office of Development at Arizona State University (ASU). JANUARY 2024


The university selected Ray on behalf of SIEF, whose mission is to create and underwrite educational initiatives that serve to promote a greater awareness and understanding of selfinsurance and alternative risk transfer arrangements. SIEF’s support of the university is impactful “because each gift received is a crucial stepping stone that both Adam Ray immediately changes the lives of real individuals in a very tangible way, and moves W.P. Carey as a whole one step forward on our collective journey,” according to Chad Kadan, Ph.D., the Charles J. Robel Dean of the W. P. Carey School of Business ASU, as well as W. P. Carey Distinguished Chair in Business and a professor in the Department of Finance. Feeling “extremely honored” to be the recipient of this scholarship, Ray notes that “it’s very humbling to be able to accept this, and just knowing that it goes toward helping me further my own education has really been a huge blessing and great honor.” A native of Chandler, Ariz., who earned a bachelor’s degree in finance from ASU, Ray feels that finance and risk management “kind of go hand in hand,” noting how Professor Mark Manfredo told him he had a knack for the latter. Ray says he’d like to continue the financial planning, reporting and data analysis work he’s been doing at Council Advisors, where he started as an accounting intern and is building his reputation as an analyst. “I just kind of want to get to a point where I’m a respected and well-known member of the finance team that I’m on right now,” he explains. While only somewhat familiar with the notion of self-insurance through his higher education, what stands out most to Ray is the importance of making healthcare more accessible and affordable to employees by fixing the system that’s already in place. “From an employer perspective, I would say that self-insurance would definitely be something that I would focus on to be in more control of my business’s insurance,” he adds. As a young person who hopes to enter the workforce full-time once his advanced degree is earned, Ray believes that feeling challenged is the key to retaining talent in a tight labor market.



“As long as someone’s being challenged every day to grow, learn and find solutions to problems – so long as their day-to-day tasks don’t get too mundane and outweigh that – I think that’s really the best way that you can keep people on board and engaged with whatever it is you’re working on,” he says. An avid volleyball and basketball player, Ray loves to stay active and favors anything outdoors, including scuba diving, which he has done with his father. “One of the things we always say in my family is ‘work hard, play hard,’” he quips. Ray developed a strong work ethic from his father, a zoning attorney, who also learned at the feet of his own father, who was a general contractor for a number of years.

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



2024 JANUARY 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 All submissions are subject to editing for brevity. Information about upgraded memberships can be accessed online at If you would like to learn more about the benefits of SIIA’s premium memberships, please contact Jennifer Ivy at




SIIA has announced that Tatum Reinsurance Intermediary, LLC. has become a Diamond member company. Diamond membership signifies the highest level of support for SIIA and demonstrates a company’s leadership position within the self-insurance marketplace. “With team members who have been involved with SIIA for over 30 years, Tatum RE is committed to supporting the leading self-funded industry organization. By Tatum RE becoming a Diamond member of SIIA and our London company, Secan & Partners, also becoming a Gold member, our combined commitment to self-insurance in general, and SIIA in particular, is clear to see. We encourage all entities active within the self-insurance industry to join SIIA and benefit from the educational, networking, and legislative/regulatory representation that SIIA provides,” said Tatum RE Chief Executive Officer Dominic Hagger. Tatum RE and Secan & Partners are intermediaries who work with clients, producers, insurers and reinsurers to design, structure and place insurance and reinsurance programs in the A&H and P&C markets. Both companies’ goal is to empower their clients’ businesses with first-class partnerships, assisting their clients in navigating their risks with confidence. Learn more at and This continued growth in the number of SIIA Diamond members reflects recognition by leading industry companies of the importance of providing robust support to the trade association that is best positioned to protect and promote their business interests. This support has enabled SIIA to improve and expand its membership service capabilities further. Learn more at



Advanced Medical Strategies (AMS), a leading healthcare affordability software company providing clinical insights and financial analysis for complex medical claims, is pleased to announce a partnership with Underwriting Management Experts (UME), a full-service Managing General Underwriter (MGU), offering underwriting, policy binding, contract issuance, premium collection, and claims payment. As one of the largest stop-loss MGUs in the country, UME remains dedicated to upholding its exceptional customer service. This collaborative alliance heralds a new era in healthcare affordability and innovation, 64


promising unparalleled solutions for the ever-evolving healthcare landscape. “Advanced Medical Strategies is a leading data and analytics organization in the healthcare industry,” said Jack McCarthy, President of UME. “With their business insights, price transparency benchmarks, clinical standards of care, and predictive analytics capabilities, we are looking forward to the ways that AMS will help our organization further its growth.” UME will be utilizing AMS’ PredictRx and PredictDx, which are housed on the Predict Platform. The Predict Suite includes clinical insights and financial analytics with data representing the entire payer marketplace. PredictDx focuses on catastrophic diagnoses, while PredictRx focuses on specialty drugs. While harnessing the Predict Suite, UME will also leverage AMS’ predictive analytics products: Profiler and CensusRater. Profiler is an industry-leading platform that quickly organizes claims files, identifies current and potential high-cost members, analyzes their diagnoses and specialty drug usage, and predicts costs for medical risk mitigation. CensusRater uses big data and statistical methodologies to project future claims of a group using only a member-census when claims data is not available.


“We are excited that UME is innovating their stop-loss operations with the use of AMS’ Predict Suite and predictive analytics,” said Peter

Borans, CEO and Founder of AMS. “We look forward to powering their underwriting and clinical processes by providing the most accurate, efficient, and high-quality solutions to best assess risk and predict cost.”

“We look forward to continuing to work together with AMS to enhance the affordability and accessibility of healthcare for all,” said Samantha Gallagher, Chief Risk Officer.


Strategic Risk Solutions (SRS), the world’s largest independent insurance company manager, announced that experienced executive leader Paul Fitzgerald has joined SRS Altitude as Chief Operating Officer. In this role, Paul will lead Altitude’s operational, data, analytics, reporting, and risk management activities. In addition, he will be involved in key strategic initiatives to grow the business across all types of non-standard solutions for corporate entities and risk-takers. “Paul has the experience and drive that fit with our vision for the COO role,” said Brady Young, CEO of SRS. “I believe he will be a tremendous asset to assist the structuring and implementation of the strategic vision for SRS Altitude.” Paul brings to SRS more than 20 years of leadership and execution experience in P&C (re)insurance across multiple lines of business and markets around the world. Prior to joining SRS, Paul has fulfilled senior roles for Swiss Re Corporate Solutions, Willis Towers Watson, Allianz, and AVIVA. “The reputation of SRS in the market speaks for itself, and I am thrilled to be joining such an exceptional organization,” said Paul. “In a continuously changing risk environment, the increasing demand for alternative risk transfer solutions signifies a dynamic shift toward innovative approaches, and in this regard, Altitude is well positioned to respond to clients’ needs.”



NEWS Altitude is set to begin operations in the first quarter of 2024. For more information about the services offered by Altitude, please visit our website: SRS Altitude. ARTEX ANNOUNCES UPDATES TO ITS CAPTIVE CELL FACILITY

Artex, one of the largest global cell facility managers, has announced it will be transitioning all of its cell facility names to Artex Axcell over the next several months. The change aims to bring more efficiency and higher levels of service to clients seeking an alternative risk solution that demands less time, investment and resources.

“The creation of Artex Axcell is the result of a rationalization effort that will be phased across jurisdictions and will drive a consistent global approach,” said Peter Mullen, Global CEO, Artex. “The new cell facility name is designed to highlight our best-in-class offering and build upon the strength and reputation of the Artex brand to entities

across the U.S., Cayman, Bermuda and Guernsey.” Cell facilities can be used for a variety of purposes, including to gain greater (re)insurance and capital market access, provide flexibility in coverage, fill gaps in commercial policies and create new revenue streams as an alternative to an owned captive and as a captive exit strategy. HPI ANNOUNCES SCOTT REVEY


Health Plans, Inc. (HPI) has tapped strategic healthcare sales leader Scott Revey as its new regional sales executive. Scott brings his expertise in cultivating strong broker relationships and the ability to position point solutions for HPI’s clients, along with a depth of knowledge of A.I. claims engine decision support, HRIS, and CRM platforms. Scott comes to HPI with almost a decade of experience in the healthcare space, including middle market sales director for Aetna, vice president of business development for Evolution Healthcare, and, most recently, sales director for ACS Benefit Services.




“With WellRithms’ Shield, a patient does not have to retain or work with an WellRithms, Inc. reported another attorney,” he added. “Instead, the member year of record savings for group health plans and members, driven and plan are completely indemnified, by plans embracing the industry’s and any provider attempts to collect must most successful solution for medical balance billing. This be directed to WellRithms. Neither the growth follows four consecutive years in which the company member nor plan gets dragged through landed in the top quartile of the courts or suffers the emotional and the Inc.-5000 list of America’s fastest-growing companies. financial strains of litigation.” CLIENT SAVINGS FOR 2023

“This was our third successful year of protecting plans and their members from egregious balance billing attempts using WellRithms’ Shield,” said company CEO Merrit Quarum, M.D.

WellRithms’ Shield is backed by AMI Indemnity, an indemnity captive that completely protects the plan and participant from additional legal or financial risk associated with a balance bill. The captive shields plans and members from litigation tactics, legal fees, and additional payments, even in the unlikely event of an adverse judgment. The protection and savings are guaranteed. All of the company’s products are backed by years of medical, legal, and technological experience.




CHAIRMAN OF THE BOARD* John Capasso President & CEO Captive Planning Associates, LLC Marlton, NJ

CHAIRMAN ELECT* Matt Kirk President The Benecon Group Lititz, PA


SECRETARY* Amy Gasbarro Chief Operating Officer Vālenz Phoenix, AZ



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

Mark Lawrence President HM Insurance Group Pittsburgh, PA

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


Adam Russo CEO The Phia Group, LLC Canton, MA

DIRECTOR Orlo “Spike” Dietrich Operating Partner Ansley Capital Group Bloomfield Hills, MI

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

* Also serves as Director



DIRECTOR Beth Turbitt Managing Director Aon Re, Inc. New York, NY



John Roos Co-Founder & EVP Aphora Health, Inc.

Jennifer Johnson Vice President of Sales/ Marketing Liviniti

Joe Summers Vice President New Business Development Health Delegates

Herman Hofman Partner Varnum LLP


John Kasper Vice President of Sales Health Cost IQ

EMPLOYER MEMBERS Matthew DeLuca HR Manager Keystone Custon Management LLC

Ryan Chapman Vice President, Sales Healthcare Strategies




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 National Conference July 22-24, 2024 September 22-24, 2024 The College Green Hotel Dublin JW Marriott Desert Dublin, Ireland Ridge Phoenix, AZ



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Life Is Not Without Risk.

A discovery at a $200 annual exam could result in nearly $500,000 in cancer treatment protocol.*

Nadia didn’t think her standard yearly check-up would lead to a cancer diagnosis. 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 Nadia 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

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, September 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. MX3170151 (R11/23)

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