By: HUB’s EB Compliance Team

At the end of any year, it is common to make lists (some industrious types check them twice). Those lists can include what one hopes to accomplish after the calendar changes, but also what one has accomplished before the ball drops. It is in that spirit, we look back at 2023 and what it may mean for 2024.

  1. ACA Reporting. One of the most significant changes for smaller employers will not kick in until next month: namely the near universal requirement to file ACA reporting forms electronically which was confirmed by the latest version of the ACA reporting form instructions. Employers that have historically filed these forms on paper should take note. Additionally, the IRS is going after coding errors since good faith relief is no longer available. Change is difficult, but hopefully employers are up on their federal and any applicable state reporting responsibilities.
  2. Surprise Billing. Surprise billing arbitrations have been subject to a series of lawsuits that have led to various pieces of FAQ guidance in response (like here and here). We can expect more litigation on that front and additional guidance in 2024. Eventually, this will settle, but it likely will not be in 2024.
  3. Transparency. By contrast, transparency developments have continued unabated. This year saw RxDC reporting for 2022, which featured some modifications to the instructions from the prior year. It also ushered in the “gag clause” attestation, due by the end of this year. These reporting obligations will continue for the foreseeable future, as will the posting of machine readable files which will likely need to include prescription drug information in the not too distant future (perhaps in 2024). By contrast, air ambulance reporting is on hold until final regulations are issued. Will we see that in 2024?
  4. COVID. Yes, while it may seem like COVID (or at least guidance related to COVID) is largely in the rearview mirror, this year began with some drama over the end of the various declared federal emergencies (including one that had nothing to do with benefits). Instead the public health emergency ended as scheduled on May 11 and with its implications confirmed by the relevant agencies. The effects of this extended to Medicaid redeterminations as well. However, the IRS also confirmed that COVID testing and treatment could continue to be treated as preventive, but only through plan years ending no later than December 31, 2024.
  5. State & Local Activity. 2023 saw significant state and local activity in the benefits space and that is likely to continue into 2024. Among the new state rules, we noticed:
    1. New Mexico regulating certain short-term plans;
    2. Ohio extending dependent coverage for vision and dental plans (which just adds to the special rules for dependents that many states adopt)
    3. Illinois and New Jersey issuing requirements for benefits to temporary workers;
    4. Colorado keeping an eye on health care sharing arrangements; and
    5. San Francisco increasing its health care contribution requirement, as it does annually.
  6. Litigation. In the current environment, litigation is a constant companion, it seems. In addition to some already highlighted above, 2023 saw a successful court challenge to the ACA preventive services rules and how firing a high cost claimant can lead to greater costs. Expect continued benefits related litigation in 2024.
  7. Annual Reminders & Adjustments. Like every year, 2023 saw its share of annual adjustments and ongoing compliance items that can use a reminder. Penalties, of course, only increase, whether they’re the DOL or HIPAA The same goes for PCORI fees (which was one annual reminder with issued, along with MLR rebates). The Federal Poverty Guideline, Medicare Part D Creditable Coverage Parameters (and don’t forget to send those Medicare Part D notices), and HSA figures also increased. By contrast, the ACA affordability percentage for 2024 went significantly down. But of course, out of pocket maximums and employer mandate penalties will go up in 2024.
  8. But that’s not all…. There was much more activity in 2023 as well that sheds some light into next year’s potential regulatory developments. For example:
  9. For Your Education. Finally, while they may not satisfy your continuing education requirements, HUB provided some additional information to make you smarter. First, HUB provided a look at what FSA election changes might be available for employees enrolling in a high deductible health plan with an HSA. Then, there was a look at dependent care assistance programs – both what they are and bits of how they work. Finally, we updated one of our most popular pieces on embedded deductibles and out-of-pocket maximums.

While every year has its own themes, 2023 seemed to be the year of transparency and state activity. These themes will likely extend into 2024 with an increased focus on mental health parity and maybe, just maybe, some formal guidance on double-dip schemes. Here’s to a happy holiday season and new year for all (except those double-dip promoters, of course)!

NOTICE OF DISCLAIMER

Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only and is not intended to constitute legal or tax advice as to an organization’s specific circumstances. It is based on Hub International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect and Hub International does not have an obligation to update this information. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your organization’s particular needs.