Midweek update

Midweek update

On the bright side, OPM has taken advantage of a recent IRS ruling. In Benefit Administration Letter 20-803

This BAL is issued pursuant to Internal Revenue Service (IRS) Notice 2020-29. As the Plan Administrator of FedFlex, OPM is permitting FSAFEDS Program participants to make certain mid-year changes for a limited period. OPM is not authorizing a new opportunity to enroll or make changes in enrollments under the Federal Employees Health Benefits (FEHB) Program or Federal Employees Dental and Vision Insurance Program (FEDVIP).
Under this BAL, participants who made an election to a DCFSA in the plan year ending December 31, 2019, can now use any 2019 funds remaining in their DCFSA account until December 31, 2020. The extended claim period is automatic for qualified participants.
Pursuant to BAL IRS Notice 2020-33, BAL 20-803 also allows an increase in the carryover amounts for HCFSA and LEX HCFSA from $500 to $550, beginning with funds remaining at the end of 2020 and carried over into 2021.Finally, OPM is extending the operational flexibilities discussed in BAL 20-201 past June 30, 2020, as necessary, depending on an agency’s operating status.

The FEHBlog heartily agrees with OPM’s decision not to create a special Open Season for FEHBP or FEDVIP because federal employees whose eligible family members have lost their employer sponsored coverage due to the COVID-19 emergency have the right under OPM’s regulations to switch their existing coverage to self plus one or self and family as necessary when a family member loses their employer sponsored coverage.

On the not so bright side, the Office of Federal Contractor Compliance Programs issued a final rule today that would subject FEHB network health care providers to federal contractor affirmative action requirements. It’s worth noting that these providers generally are subject to federal and state non-discrimination laws. The OFFCP affirmative action provisions call for time and employee consuming projects. Since the inception of the FEHB Acquisition Regulation in 1986, healthcare providers have been exempt from these requirements. Now OFFCP has overridden OPM’s approach which has allow FEHB networks to blossom. So much for deregulation. Hopefully OFCCP eventually will come to it senses as suggested on page 25 of the final rule.

On the COVID-19 vaccine front, Fierce Pharma reports

With the eyes of the world turned on the global COVID-19 vaccine race, Pfizer and its partner BioNTech posted early positive data from one of their four candidates. With this first win—and other data yet to come—the partners are prepping for a late-stage test that could begin as early as this month.

In a phase 1/2 trial, all participants who received 10 micrograms (mcg) or 30 mcg of the mRNA vaccine candidate generated antibodies that were 1.8 times and 2.8 times higher, respectively, than the average of a group of patients who had confirmed prior infections.

Importantly, this was a small, early-stage test with just 45 participants, and the vaccine has not yet proven it can prevent COVID-19. To win a full regulatory approval, the partners will have to run a large efficacy study in thousands of participants to demonstrate whether the vaccine prevents disease.

Hope springs eternal.

Healthcare IT News reports that “CMS [had create[d a] new Office of Burden Reduction and Health Informatics In addition to reducing the hours and costs clinicians and providers incur for CMS-mandated compliance, the office will also focus on how health data can be harnessed for more efficient healthcare and improved patient experience.” Bravo.

On the COVID-19 emergency relief front, according to the Wall Street Journal the House today joined the Senate in passing by unanimous consent legislation (S. 4116) extending the Paycheck Protection Program loan application period through Aug. 8. The PPP loan deadline expired last Tuesday. The President is expect to sign the bill into law.

Tuesday Tidbits

The Senate Health Education Labor and Pensions Committee held a hearing this morning on progress made in reopening schools and businesses from the great hunkering down. Fierce Healthcare reports on the hearing here.

The Department of Health and Human Services announced today the extension of “its partnership with national pharmacy and grocery retail chains CVS, Rite-Aid, Walgreens, Quest (through services at Walmart) and eTrueNorth (through services at Kroger, Health Mart, and Walmart) so they may continue to seamlessly provide Americans convenient access to COVID-19 testing. The partnership, which is part of the Community-Based Testing Program, has scaled up to more than 600 COVID-19 testing sites in 48 states and the District of Columbia. Approximately 70% of these testing sites are located in communities with moderate-to-high social vulnerability, as evidenced by their racial, and ethnic composition, and their housing, economic, language barrier, and similar considerations.” “The [partnership] contract utilizes a federal bundled payment program paid directly to retailers that receive a flat fee for each test administered, with participating retailers responsible for coordinating the full end-to-end testing.” So far the collaborative program has tested 750,000 Americans. That makes sense.

The Office of Management and Budget’s Office of Information and Regulatory Affairs issued its anxiously awaited Spring 2020 regulatory agenda. The regulatory agenda tells you what’s baking in each agency’s regulatory oven but you can rely on the oven timers’ shown in the reports. Here’s a link to OPM’s “rule list.” Nothing earth shaking to report.

The FEHBlog’s favorite healthcare quality consulting firm, Discern Health, notes the release of the National Health Quality Roadmap by the Department of Health and Human Services. “The National Health Quality Roadmap highlights not only many of the challenges that have been faced by health care stakeholders across the quality environment, but also a plan for addressing them,” Discern Health Vice President Donna Dugan said. “It will be important for stakeholders across the continuum to participate where possible in order to facilitate this transformation and aid in the realization of quality goals.”

Becker’s Hospital Review reports on a class action settlement of a phishing attack related lawsuit against UnityPoint Health which is based in Iowa. ‘The class action lawsuit alleges the health system didn’t notify [over 16,000] patients of the breach in a timely manner and told patients Social Security numbers weren’t compromised, but they were.’ The settlement is valued at $2.8 million.

For what it’s worth, Forbes reports an IRS announcement that that “the 2019 tax filing deadline remains July 15, 2020.” Forbes considers and the FEHBlog agrees that this will be the IRS’s final work on the topic. Also the Labor Department yesterday added q&a 93 to its list of frequently asked questions on the Families First Coronavirus Response Act’s paid leave program

Friday Stats and More

According to the CDC’s COVID-19 cases in the U.S. website, which the FEHBlog tracks, over the past seven weeks the numbers of new COVID-19 cases had taken a downward path for the first four weeks and then has turned up for the past three weeks. New deaths saw steady weekly reductions over the same time span until this week when there was a slight upturn. The COVID-19 hospitalization rates continue to trend down.

Week endingNew CasesNew Deaths
May 15297,5818,856
May 22159,4968,160
May 29142,2107,561
June 5142,2896,353
June 12153,3715,850
June 19161,2894,865
June 26199,2525,270

In other healthcare news —

  • Health Payer Intelligence reports that the CDC “estimates that 90 percent of national healthcare spending goes toward chronic disease management and mental healthcare, which means that strong mental health and chronic disease prevention strategies can help reduce payer spending. The CDC has named the eight most expensive chronic diseases in the US. The good news for payers is that most of these can be prevented to some degree. By being aware of preventive care strategies for these eight chronic conditions, payers can actively reduce their healthcare spending and support positive patient outcomes.”
  • The Commonwealth Fund and the Healthcare Transformation Task Force have created a Maternal Health Hub.

In federal agency news

  • Govexec.com informs us about the President’s executive order, issued today, requiring federal “agencies to increase the use of skill assessments and interviews with subject matter experts to determine an applicant’s qualifications, rather than simply looking at educational achievements. Degree requirements will not go away entirely, and certain positions—such as those in medical, legal and certain technical fields—will still require advanced degrees. The goal of the order, Trump administration officials said on Friday, is to create a broader pool of potential federal employees and a more equitable hiring process.”
  • Federal News Network reports that “The Postal Service expects to withstand the financial impact of the coronavirus impact better than it anticipated a few months ago, but warns that it could still run out of cash before the end of 2021 without long-term reform from Congress.”

Weekend Update

Happy Fathers’ Day.

The House and Senate are holding committee hearings and floor votes this week. On Tuesday the Senate Health Education Labor and Pensions Committee will hold a hearing on applying lessons learned from the current COVID-19 emergency to prepare for the next pandemic emergency.

Speaking of the current pandemic:

  • The FEHBlog was wondering about whether there has been an uptick in COVID-19 related hospitalizations to accompany the uptick in COVID-19 cases over this month. The FEHBlog was delighted to find this handy CDC website on COVID-19 related hospitalizations which shows that new hospitalizations have continued to trend down this month.
  • On Friday, OPM released guidance on the relationship paid leave / other time off and COVID-19 work by Federal employees. According to the guidance, OPM plans to issue “regulations [that ] will deem the COVID-19 national emergency to be an exigency of the public business for the purpose of restoring forfeited annual leave. The regulations [among other things] will provide that employees who would forfeit annual leave in excess of the maximum annual leave allowable carryover because of their essential work during the national emergency will have their excess annual leave deemed to have been scheduled in advance and subject to leave restoration.”

The U.S. Supreme Court has 15 decisions left to issue before its summer break. The Court is expected to issue some of those decisions tomorrow at 10 am. The Court is continuing to hold its Thursday conferences so all of 15 of the decisions may not be ready for issuance.

Georgetown Law Professor Katie Keith provided a welcome Health Affairs blog analysis of a complicated topic — federal regulation of employee wellness programs. The key complicating factor is that there are so many different applicable federal laws in play.

Monday Roundup

Health Payer Intelligence reports that “Major payers and payer organizations objected to the finalized HHS nondiscrimination rule—Affordable Care Act Section 1557—saying that the rule eliminates much of the specific language in the original rule, particularly relating to gender and sexual discrimination.” In that regard, this morning, per the Wall Street Journal, “The Supreme Court ruled that bedrock federal civil-rights law [Title VII of the Civil Rights Act of 1964] prohibits employers from discriminating against workers on the basis of their sexual orientation or gender identity, a decision that for the first time extends federal workplace protections to LGBT employees nationwide.”

The FEHBlog expects that this ground breaking Supreme Court decision will cause the Department of Health and Human Services to reconsider last Friday’s revised final Section 1557 rule either on its own initiative or upon a federal court order. That rule does not take effect until late August 2020.

In other news

  • The International Foundation of Employee Benefit Plans reports that the Centers for Medicare and Medicaid Services has created flexibilities to allow insurers to advance 2019 medical loss ratio rebates to individual policyholders. The 2019 medical loss ratio report normally would be due on June 30, 2020.
  • The American Hospital Association evaluates whether legislation or regulations can be used to extend various current telehealth flexibilities beyond the end of the COVID-19 emergency.
  • Govexec.com informs us that “Officials at the federal government’s 401(k)-style retirement savings program announced Monday that the Thrift Savings Plan has implemented provisions of the CARES Act coronavirus response package making it easier for participants impacted by the pandemic to access money in their accounts.” Here’s a link to this announcement.

Friday Stats and More

According to the CDC’s COVID-19 cases in the U.S. website, which the FEHBlog tracks, over the past four weeks the numbers of new cases had taken a downward path until this week. New deaths have seen consistent weekly reductions.

Week Ending5/225/296/56/12
New Cases155,596148,210142,829153,371
New Deaths8,1607,5616,5635,850

The Wall Street Journal report discussed in yesterday’s FEHBlog post suggested that we would see an uptick in new cases this week. Today, the Centers for Disease Control released COVID-19 considerations for events and gatherings as we emerge from the great hunkering down.

Today, the Department of Health and Human Services announced its revised final rule on Section 1557 of the Affordable Care Act which concerns individual non-discrimination. Here’s a link to the Department’s fact sheet. The 2016 final rule imposed extensive and expensive non-discrimination notice requirements on insured FEHB plans. The revised final rule scales down those requirements dramatically. What’s more the preamble to the revised final rule (p. 53) states

The Department continues to take the position that FEHB plans are not covered under this rule. Even if FEHB plans were considered “contracts of insurance,” as suggested by some commenters, they still would not fall under the scope of this rule because the contract would be with the Office of Personnel Management (OPM),which operates the FEHB Program, not with the Department. As noted above, this final rule does not extend the Department’s enforcement authority to a covered entity that is not principally engaged in the business of providing healthcare to the extent of its operations that do not receive financial assistance from the Department. The Department agrees that this final rule will accomplish the Department’s goal of reducing regulatory burden.

Being excepted from the HHS Section 1557 enforcement rule does mean that insured FEHB plans would not be subject to an HHS non-discrimination notice requirements. That status does not necessarily lead to the conclusion that FEHB plans are exempt from the statute. In any event, the revised final rule takes effect 60 days from publication in the Federal Register and you can expect federal court litigation over the revised final rule which likely would be reversed if we get a new President in 2021.

In other news —

  • Healthcare Dive reports on a recent study concluding that the air ambulance billing process is dysfunctional and produces big surprise bills. The article suggests that a federal surprise billing law is not in the offing but no one expect the counter productive ACA taxes to be repealed last year. Keep the faith.
  • Govexec.com reports on a GAO study finding that 60% of new hires left federal employment within only two years following hire during the years 2011-2017. Holy guacamole.
  • The Wall Street Journal reports that U.S. blood banks are “critically low.” “Covid-19 shutdowns have emptied community centers, universities, places of worship and other venues where blood drives typically occur.” Here’s a link to the American Red Cross blood donation site. This is a site worth promoting.

Midweek Update

This morning the Senate Homeland Security and Governmental Affairs Committee favorably reported the nomination of Craig E. Leen to be Inspector General, Office of Personnel Management “en bloc by voice vote.” The Committee also favorably reported the nomination of Russel Vought to be Director, Office of Management and Budget by a 7-4 roll call vote. Next step for these nominations — the Senate floor for confirmation votes presumably later this month.

Stat News reported on another COVID-19 treatment candidate. A Boston MA company Constant Therapeutics currently manufactures an enzyme therapy that may help COVID-19 patients. The article concludes

Constant’s task ahead is the blocking and tackling of running a clinical trial, something he believes the company is well-prepared for. “I’d love to say that a year from now there’s no need for this drug because we’re all immune, but that’s not going to happen,” [Constant’s CEO] said. “I think we can provide an enormous benefit to people and to the health care system if this drug works. And my gut says that it’s going to.”

These ongoing efforts to give doctors treatments for COVID-19 is our best bet along with public health efforts to bridge the gap to an effective vaccine, in the FEHBlog’s view.

The Wall Street Journal informs us that

In the Covid-19 pandemic, people with obesity are at higher risk for severe illness and death—adding new urgency to efforts to rethink the way doctors treat what has long been a public-health problem.

Instead of focusing only on diet and exercise, medical experts say, health-care providers need to shift to a multipronged strategy that includes new prescription weight-loss medications, behavioral therapy and possibly surgery. And to ensure the best results, they argue, this new approach should be overseen by clinicians specially trained in treating obesity. * * * The fast-emerging specialty of obesity medicine aims to close the education gap.

This is encouraging news. The Journal also reports about a study authored by

Lindsey Woodworth, an assistant professor in economics at the University of South Carolina. [Her study] first showed that when a new emergency room opens, crowding at nearby facilities instantly falls an average of 10%.

She then compared mortality rates at the older emergency departments before and after the change. She found that a 10% drop in patient volume leads to a 24% reduction in mortality rates in the first 30 days and a 17% reduction over six months.

Why can’t lower cost urgent care centers have the same effect?

OPM IG Confirmation Hearing

This afternoon, the Senate Homeland Security and Government Affairs Committee held a virtual confirmation hearing for the President’s nominee for OPM Inspector General, Craig E. Leen, who currently is the Director of the Labor Department’s Office of Federal Contractor Compliance Programs (“OFCCP”). The FEHBlog caught a good chunk of the hearing online. The Senators’s attention principally was on the other nominee Russell Vought who is the acting Director of the Office of Management and Budget and hopes to be made the permanent director.

Mr. Leen was in no sense ignored though. Each Senator asked him a question or two. His opening testimony is available here. Of note, Mr. Leen stated that

As Inspector General, I would focus on the following immediate priorities:
 Closing open IG recommendations and establishing a public dashboard to track my office’s progress;
 Addressing improper payments and seeking to eliminate them;
 Evaluating OPM’s guidance related to COVID-19 and learn from what went well and what could be improved;
 Increasing the amount of evaluations done by OPM Office of the Inspector General (OIG), and
 Ensuring equal employment opportunity for all protected classes, including ensuring inclusion and accommodations of individuals with disabilities (the federal government should follow the same guidance it gives federal contractors in how to ensure equal employment opportunity)

I would like to take a moment to focus on the first and last priorities. The OPM OIG has over 300 open recommendations going back many years. This is a common issue for IGs. I am concerned about what open IG recommendations does to public trust in government; a problem has been specifically identified, but not corrected. I would make closing these open recommendations a primary focus as Inspector General.

Mr. Leen mentioned during the Q&As that the OPM Inspector General historically has performed one evaluation annually. The next step will be a Committee business meeting to consider sending Mr. Leen’s nomination to the Senate floor.

Weekend update

The House of Representatives and the Senate both will be in session on Capitol Hill this coming week, Of note from an FEHBP perspective is that Senate Homeland Security and Governmental Affairs Committee has scheduled a confirmation hearing for the President’s nominee for OPM Inspection General, Craig E. Leen, for Tuesday June 2 at 2:30 pm. Mr. Leen currently is Director of the Office of Federal Contract Compliance Programs (OFCCP) at the U.S. Department of Labor. The FEHBlog plans to tune in.

The Supreme Court heads into the home stretch of its October 2019 term tomorrow. The Court has 25 decisions left to issue before adjourning for the summer according to the Scotusblog.

OPM released more COVID-19 guidance last Friday. This guidance concerns preparedness for returning to OPM facilities.

Fierce Healthcare brings us up to date on COVID-19 testing at home options. The latest product receiving FDA approval is offered by Quest Diagnostics a/k/a Quest Labs.

The FEHBlog ran across on Twitter today this May 24 column from Reason senior editor Jacob Sillum.

According to the Centers for Disease Control and Prevention (CDC), the current “best estimate” for the fatality rate among Americans with COVID-19 symptoms is 0.4 percent. The CDC also estimates that 35 percent of people infected by the COVID-19 virus never develop symptoms. Those numbers imply that the virus kills less than 0.3 percent of people infected by it.

The FEHBlog also found this reassuring (at least to the FEHBlog) Science News article on COVID-19 mutations.

[C]oronavirus mutations are guaranteed to pop up over the coming months — and experts will continue to track them. “The data will tell us whether we need to worry, and in what way we need to worry,” [Louise] Moncla[, an evolutionary epidemiologist at the Fred Hutchinson Cancer Research Center in Seattle] says. “Everyone should take a deep breath and realize that this is exactly what we’ve always expected to happen, and we don’t necessarily need to be concerned.”

Friday Stats and More

According to the CDC’s COVID-19 cases in the U.S. website, which the FEHBlog tracks, the number of COVID-19 deaths topped 100,000 this week. Due to greatly increased testing rate, the number of confirmed COVID-19 cases is now greatly outpacing the number of COVID-19 deaths. For example, over the past week the number of confirmed cases has increased by nearly 150,000 to 1,719,827 while the number of deaths increased by 7,561 to 101,711. The basic infection mortality rate (as calculated by the FEHBlog) has dropped over the past week. That is good news. Also check out Avik Roy’s Forbes column analyzing COVID-19 deaths.

In last Monday’s post, the FEHBlog gently ribbed OPM for not extending the 2021 benefit and rate submission deadline from Sunday May 31 to Monday June 1. To the delight of the FEHBlog and those FEHB carriers bumping up against the May 31 deadline, the FEHBlog learned today that OPM has granted this grace period. Muchos gracias.

Here’s a link to an interesting Healio report on patient deferral of wellness and chronic care visits to their primary care doctors during the great hunkering down. It is easy to register for Healio.

Results of a survey conducted by the Primary Care Collaborative and the Larry A. Green Center showed that 81% of 736 primary care clinicians reported that they have limited their wellness and chronic care visits, and 70% reported that the patients themselves postponed these visits.

The survey also revealed that preventive services are down among primary care practices, with just 5% reporting cancer screenings, 10% reporting adult vaccinations, 12% monitoring cancer survivors, 14% reporting childhood vaccinations and 25% screening for violence and neglect.

On a related note Healthcare Dive reports

  • Virtual care use grew 1.6 times since the summer of 2019, according to the Blue Cross Blue Shield Association’s COVID-19 National Pulse Survey. More than half of that growth has occurred since the onset of the COVID-19 crisis.
  • Generation Z (35%) uses telemedicine the most, with millennials (30%), Gen Xers (21%) and baby boomers (15%) behind them.
  • The pandemic has changed several behaviors, the survey found. Alcohol consumption is up 23%, and smoking, vaping and non-medical drug use rose by 19%, 15% and 13%, respectively.

Finally, Becker’s Hospital Review brings us up to date on a, HL7 / FHIR healthcare data sharing collaborative known as the Gravity Project “that aims to standardize medical data used to identify social determinants of health.” Cool.

Our firm is closely monitoring the impacts of COVID-19. Effective 6/08/20, Ermer & Suter has reopened its physical offices for business, however for the continued safety of our staff, in-office capacity will not exceed 40%. We remain fully operational and are readily available from both our office and telework locations.