By Don Hutson
Our HR landscape is evolving with a barrage of novel inputs, from cutting-edge AI to the Consolidated Appropriations Act of 2021 (CAA) and the emergence of mandates prohibiting Gag Clauses. Amidst this swirl of change, we face a pivotal question: Will the uncertainty overwhelm us or empower us to harness new visions? It’s a choice between letting ambiguity control us or taking proactive charge to navigate this dynamic terrain.
Perhaps you’ve heard the philosophy that the easiest thing to do today is the same thing we did yesterday. That statement is validated by the fact that we are all creatures of habit. The way many psychologists phrase it is slightly different: The best predicter of future behavior is past behavior. All of this suggests that going with the flow and maintaining the status quo is usually the easiest path into the future. However, during the many changes we are seeing today, that path can be disastrous.
Disruption invariably interrupts the status quo, urging us to look beyond challenges and spot opportunities. During these transformative times, HR professionals have an opportunity to build a quorum of proactive thinking, fostering an environment where each employee becomes a part of the solution. We hold the reins to shape growth during these shifts, and it’s imperative that we not only adapt but thrive, lest we become victims of the turmoil.
Here are some key disruptive elements to consider, accompanied by insightful questions and observations to guide your approach:
- The Consolidated Appropriations Act of 2021 (Effective 1/1/23): What benefits does it bring? What responsibilities do I shoulder in its wake? How does our HR department need to pivot its operations? Can we leverage this act for positive change?
This increase in transparency will necessitate increased HR responsibilities. ERISA compliance will be viewed by the Department of Labor (DOL) with greater scrutiny considering the CAA. The good news is that the new regulations will expand the control you have over plan monitoring. This will facilitate better options and provide actionable processes to assure better fiduciary impact and ERISA compliance.
- Attestations: What attestations are required of us? When is the deadline? How can we be prepared to fulfill these requirements in a timely manner? How will these attestations reshape our TPA relationships, and will they necessitate new service agreements?
The CAA requires all group health plans to make a formal attestation to the Secretary of Labor which states the absence of any Gag Clauses in their ASA(s) by December 31st, 2023. There is no gray area, and non-compliance can result in major penalties, punishments, and liabilities. It’s important to note that this first attestation is retroactive, extending back to the enactment of the CAA on 12/27/20. It is also ongoing, requiring a formal attestation each year henceforth. This new mandate can serve to clear the air on previously questionable provisions in your ASA transitioning to a higher level of transparency and understanding for all parties.
- “Gag Clauses”: What constitutes a Gag Clause? How can we proactively engage our TPA to ensure access to critical data? What safeguards will we gain with new Administrative Service Agreements (ASA) without Gag Clauses in place?
A Gag Clause is any statement or provision in your TPA service agreement that limits or restricts, in any way, your ability to audit your claims or get access to your claims data. Please keep in mind that your plan OWNS its data, not your TPA or any other entity. Upon written request to your TPA to provide your claims and payment data, the TPA must render access to your data.
- ERISA Compliance: How might these disruptive elements impact ERISA compliance? What adjustments may I need to make? Are there new ERISA facets to integrate?
While the idea of fiduciary prudence isn’t new, the increase in transparency rights is. With plan scrutiny at an all-time high, the importance of maintaining compliance (especially for self-insured employers) is timelier than ever. Your access to your data brings with it an increased expectation to analyze claims data for adjudication accuracy and the discovery of any Fraud, Waste, Abuse and Errors (FWAE).This begs the question of where to store this data and how to analyze it.
- Data Storage and Security: there is a growing trend for many self-insured plans to acquire and curate their own plan data, either on-premises or by engaging a separate vendor. Now that data access is more easily achieved, how do we ensure its secure storage?
There are several considerations to note here. First, dealing with such files in a HIPPA conformal manner is vital. SOC-2 is a voluntary compliance standard for data management that is worth investigating. This standard is based on the following trust services criteria: security, availability, processing integrity, confidentiality, and privacy.
It seems all the above considerations are hovering over an ever-changing foundation impacted by Artificial Intelligence. It will be incumbent upon all of us to become knowledgeable about AI and its capabilities. Let’s discuss ways in which we can harness AI to optimize healthcare plan management.
Artificial Intelligence is a tool that can be utilized by HR professionals for improved efficiency in several ways. We can harness these new capabilities by embracing AI tools for data-driven decision making, personalized employee experiences, and streamlined processes. However, we should be wary of over-reliance on AI, ensuring that a human touch, empathy, and ethical considerations remain central. Since managing the work force’s wellbeing and fostering a positive work environment are key considerations, we can use AI as an information source for achieving these results. While AI can automate certain tasks, it will also augment HR professionals’ capabilities, enabling them to become more strategic advisors and champions of employee engagement. Balancing AI’s efficiency with personal insights will be key to its successful implementation.
During these HR disruptions, we hold the potential to transform uncertainty into opportunity. A deep dive of research on your part regarding the HR elements you specifically address in your everyday activities is warranted. The more we learn by proactively addressing these disruptions, we not only safeguard our organizations but also shape a brighter, more resilient future. Let’s rise to the challenge, embracing these changes and turning them into catalysts for innovation, growth, and success.
How Can Benefits Claims Intelligence Help You?
BCI can assist you in several ways. Engaging with us enables you to navigate more successfully many of these disruptive elements. Through our team’s expertise you will be able to file your attestation with confidence and full understanding of the requirements under the CAA. Since this attestation will be required henceforth, BCI can provide ongoing monitoring of your plan to ensure consistent compliance and identify any wrongdoing. We can assist you in the process of acquiring your claims data from your TPA in a timely manner and can also provide safe and secure storage of your data. Above all, we are a resource for uniquely thorough and complete claims data analysis to identify misappropriated funds from your plan (FWAE) and protect your plan participants. Lastly, we can perform our “Summary Statement” on your plan at No Charge. This is a report, based upon cursory research into your plan data to clarify the extent and location of FWAE and indicate next steps.
Ready to thrive in this new HR landscape? Connect with us to explore proactive strategies that empower your organization’s journey.
Executive VP, Chief Operating Officer
Benefits Claim Intelligence, LLC
[email protected]