Review some of the more significant issues that arose in 2023 and consider what you may need to address in your benefit plans.

From fostering a workplace culture centered on supporting the physical, emotional, career and financial wellbeing of employees, to ensuring that benefit programs are compliant with local, state and federal requirements, effectively protecting the wellbeing of your employees connects directly to protecting the wellbeing of your organization overall.

Compliance Connections delivers actionable guidance designed to help you manage and optimize the connections between the compliance of your benefits and human resources programs to overall organizational wellbeing.

In this edition, we review some of the more significant issues that arose in 2023 and suggest what to consider addressing in your benefit plans.

1. Counting down the days

Although the COVID-19 National Emergency ended in April 2023, the requirement to extend certain benefit timeframes lasts well beyond then. Group health plans sponsored by private employers subject to the Employee Retirement Income Security Act (ERISA) and plans governed by the Internal Revenue Code (i.e., church plans) were required to extend Continuation of Health Coverage (COBRA) election and payment deadlines; Health Insurance Portability and Accountability Act (HIPAA) special enrollment event deadlines; and claims, appeals and external review timelines if the event occurred during the Outbreak Period (generally March 1, 2020 until July 10, 2023).

The extended HIPAA and COBRA deadlines expired in September 2023. However, the timelines for submitting claims to the plan (generally one year), appealing denied claims (180 days), pursuing an external review (four months), and finalizing that decision (~45 days) may still be ongoing for claims when a plan and/or claimant uses the full timeframes available under the Outbreak Period rules. Plan sponsors should discuss this extended timeframe for claims with insurers, third-party administrators (TPAs) and stop-loss carriers to avoid unintentionally self-insuring a claim.

Have you spoken to your plan service providers about these last extended timelines?

2. Prevention is better than the cure

Since the passage of the Patient Protection and Affordable Care Act (ACA), non-grandfathered group health plans have been required to provide, without cost sharing, coverage for certain preventive services recommended by three entities: the United States Preventive Services Task Force (USPSTF), the Health Resources and Services Administration (HRSA) and the Advisory Committee for Immunization Practices (ACIP). A Texas court determined that USPSTF wasn't properly appointed; therefore, any recommendations made after the passage of the ACA aren't enforceable. A stay was issued upon an appeal to the Fifth Circuit. This case will likely find its way to the US Supreme Court to determine if USPSTF's appointment and recommendations are salvageable.

The ACA is 13 years old now, and participants are accustomed to free preventive care. In all likelihood, imposing a cost now would reduce participant use of those services and could ultimately drive up plan costs. In the meantime, the Department of Health and Human Services (HHS) has issued a request for information to determine the feasibility of non-grandfathered plans covering over-the-counter preventive products without a prescription.

Keep your eye on preventive care next year. How will you proceed if portions of the ACA preventive care mandate end and others move to over-the-counter?

3. Ensure transparency in your contracts — no gag clauses

The Consolidated Appropriations Act 2021 (CAA 2021) prohibits group health plans from entering into service provider contracts containing gag clauses. This prohibition includes contracts with health care providers, networks of providers, TPAs or other service providers offering access to a network of providers. A "gag clause" is a contract term that restricts disclosure of provider cost or quality of care information, access to de-identified claims information and sharing such information with a HIPAA business associate.

Contract gag clauses can sometimes be difficult to spot, so a careful review is important. To monitor compliance with this prohibition, the Departments of Labor (DOL), HHS and the Treasury (collectively, the Departments) require health insurers and group health plans to submit an attestation of compliance to the Center of Medicare and Medicaid Services (CMS) Health Insurance Oversight System (HIOS). The first submission is required by December 31, 2023, covering the period from December 27, 2020 to December 31, 2023. When an insurer submits attestations for its fully insured client plans, it satisfies the fully insured plan's attestation requirement, but most plan sponsors of self-insured group health plans must submit their own attestations of compliance. To that end, plan sponsors should determine which of their group health plan contracts must comply with the prohibition, confirm the absence of gag clauses in those contracts, verify whether the plan service provider will submit an attestation for that contract on behalf of the plan, and submit attestations for the remaining contracts.

How have you prepared to comply with the gag clause prohibition compliance attestation?

4. Pandemic-related special telemedicine and health savings account rules are winding down

During the pandemic, to allow for effective access to medical care, the federal government took action to expand access to telemedicine in two significant ways. First, the Departments provided regulatory relief allowing employers to offer a telemedicine or other remote care service arrangements as a separate plan, on a standalone basis, to employees and dependents who weren't eligible for any other group health plan offered by the employer. Through this relief, standalone telemedicine plans were exempt from many of the ACA market reforms, including the ACA preventive care mandate and out-of-pocket maximum rules. Additionally, Congress passed legislation permitting plan sponsors to provide telemedicine services without cost sharing without impinging on a high-deductible health plan (HDHP) participant's eligibility to contribute to a health savings account (HSA).

Unless Congress takes action, both pieces of relief are coming to an end. For a calendar year plan, the relief will end on December 31, 2023, at which time plan sponsors with standalone telemedicine plans must terminate the plans or amend them to tie eligibility for the benefit to enrollment in the employer's major medical plan. And, with respect to the liberalized HDHP/HSA rules, after December 31, 2024, calendar year plans must revert to prior IRS rules while non-calendar year plans have until the end of their 2024 plan year to do so. At that point, participants will be required to meet the HDHP minimum deductible thresholds before the plan may offer any free non-preventive telemedicine services. Failure to do so can disqualify an individual from contributing to (or receiving contributions into) their HSAs.

How are you prepared to address this reversion to pre-pandemic rules?

5. New rules expand accommodations for pregnant workers

The Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees to provide reasonable accommodations for pregnant and postpartum workers, unless employers can show an undue hardship. However, the PWFA doesn't replace laws that provide greater protections to workers affected by pregnancy, childbirth and related conditions, which could include postpartum depression, those who have suffered a pregnancy loss or those undergoing fertility treatment. The PWFA expands the ADA definition to include an employee who cannot perform one or more essential job functions if their inability to perform an essential job function is for a temporary period, the essential function could be performed in the near future, and the inability to perform the essential function could be accommodated. The PWFA does specify that these expanded reasonable accommodations only apply to an employee's known limitations. This means that an employee will need to make an employer aware of the limitation and from there, employers are then responsible for beginning an interactive process to determine appropriate accommodations based on the individual circumstance.

Employers should keep in mind that the needed accommodation might be simple, such as the employee needing to sit down or take breaks to drink water. Further implementation guidance is expected later this year.

What updates will you need to make to your policies and procedures related to pregnancy, childbirth, and related conditions?

This is a preview edition of Compliance Connections, a monthly publication produced by Gallagher's Compliance Consulting practice. For five more action steps, contact your Gallagher representative.

Compliance is a series of actions, not a final destination. As a trusted advisor, Gallagher has developed this Compliance Connections series to help you pursue a path through employee benefits compliance issues as part of an overall continuing compliance plan. Employers should carefully evaluate their health and welfare plans to determine if they are in compliance with both federal and state law. If you have any questions about one or more of the compliance requirements listed above, or would like additional information on how Gallagher constantly monitors laws and regulations impacting employee benefits in order to support employers in their compliance efforts, please contact your Gallagher representative.


The intent of this analysis is to provide you with general information. It does not necessarily fully address all your organization's specific issues. It should not be construed as, nor is it intended to provide, legal advice. Questions regarding specific issues should be addressed by your organization's general counsel or an attorney who specializes in this practice area.