two women looking at same laptop

Guidance Issued on MHPAEA Comparative Analysis Requirement - Downloadable PDF

As previously reported, the Consolidated Appropriations Act, 2021 (“CAA”) amends the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”) to require group health plans and health insurers to conduct a comparative analysis of non-quantitative treatment limitations (“NQTLs”) imposed on mental health/substance use disorder (“MH/SUD”) benefits as compared to medical and surgical benefits. NQTLs are limits on the scope or duration of treatment that are not expressed numerically.

On April 2, 2021, the Departments of Labor, the Treasury and Health and Human Services (collectively, “the Departments”) issued FAQ 45, providing the first guidance on this new requirement.

Briefly, the FAQ:

  • Clarifies that plans and carriers should now be prepared to make a comparative analysis available upon request.
  • Includes a list of elements that should be included in a comparative analysis to meet the Department’s requirements and describes the types of documents that plans should be prepared to make available in support of the analysis.
  • Describes circumstances where a comparative analysis will not be sufficient, including when it:
    • consists of conclusory or generalized statements without specific supporting evidence and detailed explanations; or
    • is a mere production of a large volume of documents without a clear explanation of how and why each document is relevant.
  • Outlines the correction and enforcement action the Departments may take in the event the plan has not provided sufficient information to review the comparative analysis or where the Departments determine the plan is not in compliance with MHPAEA.
  • Allows participants, beneficiaries and their authorized representatives in an ERISA-covered plan to receive a copy of the comparative analysis upon request.
  • Highlights that near-term enforcement efforts will be focused on the following NQTLs:
    • Prior authorization requirements for inpatient services;
    • Concurrent review for inpatient and outpatient services;
    • Standards for provider admission to participate in-network, including reimbursement rates; and
    • Out-of-network reimbursement rates (plan methods for determining customary and reasonable (“UCR”) charges.

Below you will find additional details on the guidance.


Mental Health Parity and Addition Act of 2008

The Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”) applies to:

  • employers with at least 51 employees offering a group health plans that provides for any MH/SUD benefits, and
  • fully insured group health plans in the small market, generally employers with 50 or fewer employees (small market in California and New York are employers with fewer than 100 employees) , that are required to provide all essential health benefits, including MH/SUD benefits.


  • Provides that financial requirements (such as coinsurance and copays) and treatment limitations (such as visit limits) imposed on MH/SUD benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical/ surgical benefits in a classification.
  • Prohibits separate treatment limitations that apply only to MH/SUD benefits.
  • Provides that NQTLs may not be imposed on MH/SUD benefits in any classification unless, the processes, strategies, evidentiary standards, and other factors are comparable and applied no more stringently for MH/ SUD benefits than for medical/surgical benefits under the terms of the plan (or health insurance coverage) as written and in operation.
  •  Imposes certain disclosure requirements.

With respect to NQTLs, the focus is not on whether the final result is the same for MH/SUD benefits as for medical/surgical benefits, but rather on whether the underlying processes, strategies, evidentiary standards, and other factors are in parity.

The Consolidated Appropriations Act, 2021

The CAA amends MHPAEA to expressly require a group health plan that imposes NQTLs on MH/SUD benefits
to perform and document a comparative analysis of the design and application of NQTLs. Beginning February 10, 2021, plans (and health insurance carriers) must make a comparative analysis available to the Departments or applicable state authorities upon request.

What’s New?

When Must the NQTL Comparative Analysis Be Available?

As the requirement applies beginning February 10, 2021, plan and issuers should now be prepared to make their comparative analysis available upon request.

Note the CAA expressly requires that plans and carriers conduct and document the comparative analysis of the design and application of NQTLs. It is no longer a best practice. The carrier is responsible for compliance for fully insured plans subject to the MHPAEA. For self-funded plans subject to MHPAEA, the employer is ultimately responsible for compliance. Employers should coordinate with third- party administrators (“TPAs”) or other vendors to assist in performing this analysis.

What Documentation Must Be Made Available?

The FAQ provides additional clarification, including minimum requirements for a comparative analysis to be sufficient under the law. The analysis must contain a detailed, written, and reasoned explanation of the specific plan terms and practices at issue and include the bases for the plan’s or carrier’s conclusion that the NQTLs comply with MHPAEA. The report developed by the plan must include comparative analysis specific to each NQTL imposed on a MH/SUD benefit.

At a minimum, sufficient analyses must include a robust discussion of all of the elements listed below.

  1. A clear description of the specific NQTL, plan terms, and policies at issue.
  2. Identification of the specific MH/SUD and medical/ surgical benefits to which the NQTL applies within each benefit classification, and a clear statement as to which benefits identified are treated as MH/SUD and which are treated as medical/surgical.
  3. Identification of any factors, evidentiary standards or sources, or strategies or processes considered in the design or application of the NQTL and in determining which benefits are subject to the NQTL. Analyses should explain whether any factors were given more weight than others and the reason(s) for doing so, including an evaluation of any specific data used in the determination.
  4. To the extent the plan or issuer defines any of the factors, evidentiary standards, strategies, or processes in a quantitative manner, it must include the precise definitions used and any supporting sources.
  5. The analyses, as documented, should explain whether there is any variation in the application of a guideline or standard used by the plan or issuer between MH/SUD and medical/surgical benefits and, if so, describe the process and factors used for establishing that variation.
  6. If the application of the NQTL turns on specific decisions in administration of the benefits, the plan or issuer should identify the nature of the decisions, the decision maker(s), the timing of the decisions, and the qualifications of the decision maker(s).
  7. If the plan’s analyses rely upon any experts, the analyses, as documented, should include an assessment of each expert’s qualifications and the extent to which the plan or issuer ultimately relied upon each expert’s evaluations in setting recommendations regarding both MH/SUD and medical/surgical benefits.
  8. A reasoned discussion of the plan’s conclusions as to the comparability of the processes, strategies, and factors, within each affected classification, and their relative restrictiveness, both as applied and as written. This discussion should include citations to any specific evidence considered and any results of analyses indicating that the plan or coverage is or is not in compliance with MHPAEA.
  9. The date of the analyses and the name, title, and position of the person or persons who performed or participated in the comparative analyses.

A general statement of compliance, coupled with a conclusory reference to broadly stated processes, strategies, evidentiary standards, or other factors will not be sufficient to meet this statutory requirement.

The guidance suggests that plans should utilize the DOL’s own self-compliance tool to determine their compliance with MHPAEA. The tool can be accessed at sites/dolgov/files/EBSA/laws-and-regulations/laws/mental- health-parity/self-compliance-tool.pdf.

Plans should be prepared to make available all documents that support the analysis and conclusions of their comparative analysis. The FAQ and the DOL’s self-compliance tool include a list of the types of documents that should be available to support a NQTL analysis.

Examples of Insufficient Documentation

The guidance provides examples of practices and procedures plans should avoid in responding to a request for comparative analysis as they are insufficient, including:

• Production of a large volume of documents without a clear explanation of how and why each document is relevant to the comparative analysis.

• Conclusory or generalized statements, including mere recitations of the legal standard, without specific supporting evidence and detailed explanation.

• Identification of factors, evidentiary standards, and strategies without a clear explanation of how they were defined and applied in practice.

• An analysis that is outdated due to time, change in plan structure or other reason.

Requests From State Regulating Agencies and Participants and Beneficiaries

In addition to the Departments, state regulators, participants, beneficiaries and/or enrollees (or their authorized beneficiary) can also request a NQTL analysis. As with other requests, plans must be prepared to make this information available upon request. The guidance also makes clear that any NQTL analysis must also be provided, free of charge, upon request as part of an adverse determination appeal under a non- grandfathered group health plan.

Near-Term Enforcement Priorities

The Departments will focus their enforcement efforts on any NQTL that is brought to their attention through a complaint or violation. In the absence of such a complaint, the Departments will focus their enforcement efforts on the following NQTLs:

  • Prior authorization requirements for in-network and out- of-network inpatient services;
  • Concurrent review for in-network and out-of-network inpatient and outpatient services;
  • Standards for provider admission to participate in a network, including reimbursement rates; and
  • Out-of-network reimbursement rates (plan methods for determining usual, customary, and reasonable charges).

If a request for a comparative analysis references a specific NQTL, plans should also be prepared to make available a list of all other NQTLs that they have performed a comparative analysis on. It is possible that plans may be required to submit analyses for these additional NQTLs.


If the Departments conclude, after review of the analyses, that the plan has provided insufficient information, the Departments can specify the information necessary for the plan to comply with the request. If the Departments conclude that the plan is not in compliance with MHPAEA, the plan will be required to specify what actions they will take to bring the plan into compliance. The Act imposes a 45-day corrective action period where the plan will be required to submit new analyses showing that they have now come into compliance with MHPAEA. If the plan is still noncompliant after the corrective action period, the plan, within 7 days of receipt of the Departments’ determination of noncompliance, must notify all individuals enrolled in the plan or coverage that the coverage has been determined to be out of compliance with MHPAEA.

Employer Action

Carriers of fully insured plans should be responsible for compliance with this new requirement. Self-funded plans should coordinate with their third-party administrators or carrier partners to determine if they are able to conduct the analysis for the plan. Plans should be prepared to apply pressure on their TPAs or carrier partners if they initially refuse to conduct the analyses. The carriers and TPAs are in the best position to complete these NQTL analyses. However, if after repeated requests these vendors are still unwilling to provides the analyses, plans must be prepared to complete the analyses themselves.

COVID-19 vaccine bottles in a row

Update on COVID-19 Vaccine and Vaccine Administration Cost - Downloadable PDF

Medicare has increased and simplified its payment rate for administration of the COVID-19 vaccine to $40 per dose. This change may impact group health plans with respect to their payment rate to providers.


Non-grandfathered group health plans are required to cover, without cost sharing, the COVID-19 vaccine. This obligation extended to coverage associated with administering the vaccine. The federal government continues to pay for the vaccine itself through funding authorized by the CARES Act.

For vaccines administered in-network, plans will pay the rate negotiated with in-network providers, and that continues to be true. For vaccines administered out-of-network, however, group health plans must reimburse providers an amount that is reasonable, determined in comparison to prevailing market rates for such service. Guidance provides that the amount that would be paid under Medicare is considered reasonable.

Initially, Medicare established a Medicare payment rate for a single-dose vaccine or for the final dose in a series, at $28.39. For a COVID-19 vaccine requiring a series of two or more doses, the payment rate was $16.94 for the initial dose(s) in the series and $28.39 for the final dose in the series.

Medicare allowed for the rates to be geographically adjusted. It appears many fully insured plan carriers, and many self- insured plans had been reimbursing at these Medicare rates for both in-network and out-of-network providers, regardless of whether the cost was treated as a pharmacy benefit or a medical benefit.

What’s New?

Medicare recognized updated information about the costs involved in administering the COVID-19 vaccine for different types of providers and suppliers, and the additional resources necessary to ensure the vaccine is administered safely

and appropriately. Thus, for vaccine administration services provided on or after March 15, 2021, Medicare’s payment rate increased to approximately $40 per dose, regardless of whether a single dose or a dose in a series of doses. That rate is subject to geographic adjustment.

This change in the Medicare vaccine administration
payment rate is expected to be adopted by most providers administering the COVID-19 vaccine, increasing the full cost for double-dose vaccine administration by approximately $35, or about 78%, and for single-dose vaccine administration by approximately $23, or about 81%.

Employer Action

Employers may be notified by carriers, third party administrators (“TPAs”), and/or pharmacy benefit managers (“PBMs”) regarding this development, or they may simply notice higher claims costs related to the vaccine administration. A self-insured plan may be given a choice to opt-out of the higher payment by their TPA or PBM, but the employer would have to find another solution for providing vaccine administration at no cost. For this reason, opting out is likely to be impractical.

female medical professional wearing PPE

COVID-19 PPE Now a Qualified Medical Expense - Downloadable PDF

On March 26, 2021, the IRS issued IRS Announcement 2021-7, which clarifies that amounts paid for certain personal protective equipment (“COVID-19 PPE”) used to prevent the spread of COVID-19, including masks, hand sanitizer and sanitizing wipes can be treated as amounts paid for medical care under § 213(d) of the Internal Revenue Code.

Accordingly, because these amounts are expenses for medical care under § 213(d) of the Internal Revenue Code, these amounts can also be eligible expenses under a health flexible spending account (health FSA), health savings accounts (HSAs), health reimbursement arrangements (HRAs) and Archer medical savings accounts (Archer MSAs). Note, that if the amount is paid or reimbursed under one of these accounts, it is not deductible under § 213.

The IRS announcement also provides relief for group health plans, including health FSAs and HRAs, to amend their plans pursuant to provide for reimbursements of expenses for COVID-19 PPE incurred for any period on or after January 1, 2020.

Consistent with prior guidance, group health plans may amend their plans by the last day of the first calendar
year beginning after the end of the plan year in which the amendment is effective. No amendment with retroactive affect can be adopted after December 31, 2022. Further, the plan must operate consistently with the terms of the amendment, including during the period beginning on the effective date of the amendment through the date in which the amendment is adopted.

Employer Action

Employers should review their plan documents. For plans that use a broad definition under 213(d) for eligible medical expenses, an amendment is not necessary. However, for plans with a narrower definition of 213(d), the definition of eligible medical expenses may need to be amended.

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Tea & Tidbits - COVID-19 Vaccine (Webinar Video)

Join us as we spill the tea on the latest employment issues.

For thirty minutes each month, the most relevant issues facing the world of employment will be raised, and legal, HR, and benefits perspectives on the issue will be discussed.

March’s program focuses on the COVID-19 vaccine and your workplace. We will discuss best practices for creating and implementing a workplace vaccine program, considerations of mandating vaccinations, providing incentives to encourage vaccination, and making religious or medical accommodations.

We will also share techniques and strategies for discussing this hot topic with employees, as well as benefit options relating to obtaining the vaccine.

a stack of four thick binders

Conducting a Human Resource Assessment

(Article originally authored by HR/Advantage Advisory, Powered by Clark Hill)

A regular review of your human resource operations is imperative in order to keep your company in compliance and reduce the possibility of penalties and liability. Specific areas to review may include I-9s, nondiscrimination policies and practices, medical record/information privacy, record retention, and destruction and privacy of personal information.

I-9 Assessment – Noncompliance in this area can result in significant penalties for an employer. It’s in the employer's best interest to take proactive steps to review, document and correct I-9 form mistakes so files are in order ahead of any possible I-9 audit. I-9 forms, and supporting documentation, should be kept separately from employee personnel files.

Medical privacy – Under the Americans with Disabilities Act (“ADA”), employers have a legal obligation to protect their employees’ medical information. To this end, employee medical information should be maintained separately from employees’ personnel files. This includes information related to medical exams, FMLA, disability claims and ADA requests for accommodation or related information.

Nondiscrimination – Remember that supervisors may have access to employee personnel files in order to make employment decisions. Therefore, only information relevant to employment decisions should be kept in the personnel file. This includes pre-employment documents like a job description, resume, employment application, offer letter, and employment documents such as performance appraisals, records of attendance, awards or citations of performance and training records. Anything not relevant to the job should be kept separately from the personnel file, including EEO records.

Record retention - Employers must follow state and federal laws governing retention of human resource records. With electronic records becoming more of the norm, it is important for employers to ensure that access to electronic files is limited and has effective security controls. It is a very good idea to have a written policy in place outlining your company’s retention policy, process and schedule.

Record destruction – In addition to a records retention policy, employers should also have a policy related to the destruction of employment records. In some instances, federal regulations require specific methods of destruction for certain records.

All employee files, whether they are stored in a physical or electronic format, should be kept in a secure location with limited access. The following documents should be kept separately from the employee personnel file:

  • I-9 forms and copies of identification
  • Investigation notes and reports
  • Drug/alcohol tests and back ground checks
  • Payroll records containing protected information like social security number or garnishment orders
  • Medical records including, but not limited to, FMLA documents, request for ADA accommodations, medical exams, disability benefit records/claims, worker’s compensation, health information related to the employee’s family member(s).
  • Confidential records containing protected information like date of birth, marital status or religious beliefs
  • Consumer related credit information and reports and financial data.

If you would like assistance to conduct an HR Assessment for your organization, please reach out Alliance Benefit Solutions at (732) 908-7500


  • Dresser & Associates, “Personnel Records: Audit: Why audit personnel files and records maintenance procedures”
  • SHRM, “Complying with Employment Record Requirements”

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.

four individuals interacting in office while one is on tablet and another is on laptop

New COBRA Subsidy - Downloadable PDF

Congress passed the American Rescue Plan Act of 2021 (“the Act”) on March 10, 2021 and it was signed into law on March 11, 2020. The Act includes a 100% COBRA subsidy available to certain COBRA qualified beneficiaries who lose group health plan coverage as the result of an involuntary termination or reduction in hours. This is different from the original House legislation, which included an 85% subsidy (with the COBRA beneficiary responsible for 15% of the COBRA premiums). Employers will be able to claim a credit against payroll taxes to reimburse the cost of the subsidy.

The COBRA subsidy begins April 1, 2021 (the first day of the month following enactment) and last through September 30, 2021.

While this subsidy provides welcome relief for many COBRA qualified beneficiaries, it will be administratively challenging for employers, especially given other relief afforded to COBRA elections and premiums payments under the Outbreak Period guidance.

The following FAQs explain the Act’s COBRA subsidy in more detail.

Who Qualifies for a Subsidy?

An assistance eligible individual (“AEI”) qualifies for the subsidy.

An AEI is, for the period of April 1, 2021 – September 30, 2021, an individual who is eligible for COBRA due to an involuntary termination of employment or a reduction in hours and who elects COBRA continuation of coverage. Individuals who voluntarily terminate from employment are not AEIs.

AEIs include:

  • New COBRA qualified beneficiaries. Individuals who become COBRA qualified beneficiaries due to involuntary termination of employment or reduction in hours on or after April 1, 2021 but before September 30, 2021.
  • Existing COBRA qualified beneficiaries. COBRA qualified beneficiaries due to an involuntary termination of employment or reduction in hours who currently have COBRA coverage and continue COBRA between April 1, 2021 – September 30, 2021.
  • Second chance COBRA qualified beneficiaries. Individuals who were COBRA qualified beneficiaries due to an involuntary termination of employment or reduction in hours but, either (1) did not elect COBRA or (2) elected then dropped COBRA. Had they elected COBRA (or not dropped the coverage), they would have had COBRA coverage between April 1, 2021 – September 30, 2021.

How Much is the Subsidy?

The COBRA subsidy is 100%. This means AEIs will not pay any portion of their COBRA premium during the subsidy period (April 1, 2021 – September 30, 2021) so long as they remain subsidy eligible.

Employers are allowed a credit against Medicare payroll taxes to be reimbursed for the subsidy.

Is There a “Second Chance” to Elect COBRA?

Yes. There is a second chance for an individual who otherwise would be an AEI except the individual:

  • Does not have a COBRA election in effect on April 1, 2021; or
  • Elected COBRA coverage and later dropped the coverage.

In this case, the AEI may elect COBRA coverage (and the subsidy) beginning April 1, 2021. The maximum COBRA coverage period will be measured from their original qualifying event date had they elected COBRA (or not dropped the coverage).

As described later, a special notice will need to be provided and, upon receipt, these “second chance” individuals will have 60 days to elect COBRA continuation of coverage (retroactive to April 1, 2021).

This is likely to get very complicated with delayed election relief for the Outbreak Period which permits retroactive enrollment back to the original qualifying event date. Note, however, that subsidized premiums are only available beginning April 1, 2021. An individual who is eligible for both types of relief would be permitted to enroll in the subsidized coverage April 1, 2021 going forward. That said, more guidance on the interaction of the Outbreak period and COBRA subsidy would be helpful.

When Does the Subsidy End?

The subsidy naturally expires September 30, 2021. After that date, the full COBRA premium will be owed to continue COBRA coverage or to elect new COBRA coverage. Employers must provide notice within a specific window prior to expiration of the subsidy.

Additionally, if an AEI becomes eligible for other group health plan coverage or Medicare, the subsidy is no longer available. Mere eligibility (versus enrollment) is all that is required.

An AEI must notify the group health plan when the AEI is no longer eligible for the subsidy due to other coverage. Regulations will provide guidance as to the time and manner of this notification. A penalty of $250 applies for failure to notify. There is an exception when the failure is due to reasonable cause and not willful neglect. Note that It is possible for Congress to extend the subsidy beyond September 30, 2021 through future legislation.

How Far Back Will We Have to Look for AEIs?

COBRA coverage due to a termination of employment or reduction in hours runs 18 months. Thus, individuals who experienced an involuntary termination of employment or reduction in hours and were in their COBRA election window beginning in November 2019 (or later) may be eligible for the subsidy relief.

What Coverage Does the COBRA Subsidy Apply to?

The statute defines group health plan coverage broadly to include an employee welfare benefit plan providing medical care. While further guidance is likely to clarify this, we expect a subsidy to be available with respect to the following coverage:

  • Major medical
  • Dental
  • Vision

This includes fully insured and self-funded group health plans.

Can AEIs Change Their COBRA Coverage?

An employer may, but is not required to, allow an AEI to enroll in a different, lower cost plan option than the coverage the individual was enrolled in at the time the qualifying event occurred. The different plan option must be offered to similarly situated active employees of the employer at the time the election to change the plan is made. The different plan option cannot be excepted benefits (e.g., dental coverage), a qualified small employer health reimbursement arrangement (QSEHRA) or a health flexible spending account (health FSA).

An AEI has 90 days after the date of notice of this plan enrollment option to elect to enroll in the different coverage option.

Employers considering allowing enrollment in a lower cost plan option should obtain carrier (including stop loss carrier) approval. Not all carriers may allow for this flexibility.

Are There Notice Requirements?

There are multiple notice requirements associated with the subsidy.

Election Notice

COBRA election notices for AEIs who become entitled to COBRA coverage between April 1, 2021 – September 30, 2021 must be updated to include information on the availability of premium assistance and, if applicable the ability to enroll in a lower cost plan option. Employers may use a separate document that includes the required information.

In addition, notice must be provided to AEIs who have a “second chance” to elect COBRA and obtain the subsidy. This notice must provide by May 31, 2021 (60 days from April 1, 2021 – first of the month following enactment). Failure to provide such notice will be treated as a failure to meet the notice requirements under COBRA.

Briefly, the notice must include:

• forms necessary to establish eligibility for the subsidy;

• contact information for the employer or other entity maintaining information in connection with the subsidy;

• a description of the:

  • extended election period;
  • obligation of qualified beneficiaries to notify theplan when no longer eligible for the subsidy and thepenalty for failure to notify;
  • qualified beneficiaries’ right to a subsidized premiumand any conditions on entitlement to the subsidy(displayed prominently); and
  • option (if available) for the qualified beneficiary to enroll in a different coverage option.

A model notice will be available within 30 days after the date of enactment. It is possible the Departments will require additional notifications as part of their guidance.

Notice of Option to Change COBRA Coverage

If an employer allows AEIs to change to a different, lower cost plan option notice must be provided to inform the AEI of this option.

Notice of the Expiration Period for Premium Assistance

A notice must be provided to an AEI about the upcoming expiration of the available subsidy except in cases where the subsidy is no longer available due to eligibility for other group health plan coverage or Medicare.

The notice must be provided beginning on the date that is 45 days before the subsidy ends and ending on a day that is 15 days before the expiration and must be written in clear and understandable language. It must be provided to the AEI and indicate that the AEI’s subsidy will expire soon and include the date of the expiration in a prominent manner.

A model notice will be available 45 days after enactment.

Who May Claim the Tax Credit?

The “person to whom premiums are payable” may claim the tax credit. In the case of a group health plan that is subject to COBRA, this is the employer maintaining the plan.

Employers may apply to credit against Medicare payroll taxes to reimburse the cost for the COBRA subsidy.

What Should Employers Do Now?

• Connect with your COBRA vendor to discuss administration for this new COBRA subsidy. This will include:

• issuing notices to the “second chance” AEIs by May 31, 2021;
• updating election notices to reflect the subsidy for COBRA events between April 1, 2021 and September 20, 2021; and
• issuing notice to AEIs when their individual subsidy is set to expire in accordance with required timeframes.

• Identify all individuals who may qualify as AEIs. This will include individuals who may not have elected COBRA (or dropped COBRA) but are still within the 18-month maximum COBRA period. Employers may need to look back to individuals who experienced an involuntary termination of employment or reduction and were otherwise eligible for COBRA beginning in November 2019.

• Discuss the COBRA subsidy with payroll departments and await further guidance for clarification on claiming the tax credit.

• Await further guidance and model notices. Hopefully, any guidance or notices will address the COBRA deadlines impacted by the Outbreak Period and how this intersects with the COBRA subsidy and applicable notices.

2021 Guidance Issued on Outbreak Period - Downloadable PDF


On February 26, 2021, the Departments of Labor and the Treasury (“the Departments”) issued guidance addressing the COVID-19 Outbreak Period – specifically, the associated period of “up to one year” that may be disregarded for certain benefit plan deadlines. Unexpectedly, they have taken the interpretation that these benefit plan deadline extensions generally apply on an individual-by-individual basis. Individuals with timeframes that are subject to the extensions will have until the following deadlines to make benefit elections, payments, file a claim or benefit appeal as follows:

  • one (1) year from the date they were first eligible for relief, or
  • 60 days after the announced end of the National Emergency (the end of the Outbreak Period).

This is a different approach to what most practitioners thought, which would have had the clock start running on the disregarded timelines after February 28, 2021. Note, under this latest guidance, employers must notify affected individuals as to the end of the relief period. You will find further details follow.


In May of 2020, the Departments issued a final rule that required all group health plans, disability plans, and other employee welfare benefit plans to disregard the period (“the Outbreak Period”) from March 1, 2020 until 60 days after the announced end of the National Emergency relating to the coronavirus pandemic with respect to the following periods and dates…

To read more, click the guide below:

businessman on a remote call looking worried

Difficult Communications During COVID-19

(Article originally authored by HR/Advantage Advisory, Powered by Clark Hill)

Having difficult conversations about work performance, attendance, and inappropriate behavior is often a challenging task, but with a large number of employees working remotely, it can be even more difficult. The steps outlined below may help you to better prepare for a difficult conversation with employees.

  • Gather Facts and Determine a Strategy – It’s important to gather your facts in order to provide a clear message. Often times, employees may not realize their performance or behavior is an issue, so be prepared to provide them with specific examples and how it impacts the department, company goals, sales, etc. If you would normally engage a witness when meeting with the person face-to-face, you should do the same for a virtual meeting. In these cases, it’s a good idea to let the employee know that someone else will be attending the meeting. Also, try to consider other factors that may affect where and when the meeting should take place: Are you in the same time zone? Does the employee normally work in a private location in their home? Or are there family members that may overhear the conversation?
  • Be Aware of Technical Limitations – Other than the basic glitches like an unstable internet connection or lagging audio, be aware of your body language. Sit up straight and maintain eye contact through the meeting. Positioning the video feed as close to your camera as possible will give the appearance that you are making direct eye contact with the individual. Be attentive and don’t try to multi-task by checking your text messages or emails. It may even be a good idea to shut off your phone and email, so you’re not distracted by the pinging as new messages arrive.
  • Listen and Encourage Two Way Communication – Allow enough time for the employee to ask questions and discuss corrective action. Make sure they know that you are available after the meeting as well if they have additional questions. Also make sure that you follow up on a regular basis to provide feedback and updates on their progress.

Remember, keeping the lines of communication open with your employees from the start may keep you better informed and aware of facts that you may not be privy to otherwise. According to SHRM’s Culture Report, 4 in 10 employees indicate that their manager fails to frequently engage in honest conversations about work topics. Encouraging a culture of open and transparent communication can help managers see the whole picture. For example, a manager who would normally label an employee “lazy” because they consistently show up late for staff meetings may not make that same judgment if they are aware that the employee has been helping their child who is struggling with a challenging online class that occurs prior to the staff meeting.

In addition to struggling with communication through video conferencing, there is also a very real barrier trying to communicate effectively when wearing a mask and socially distancing. The tips below may help to alleviate some of those issues:

  • Move to a quiet place, if possible, to hold a conversation.
  • Make sure you have the individual’s attention and face them when speaking.
  • Speak a little louder and slower than usual.
  • Use your hands or body language to help get your message across, or use non-verbal cues like a thumb’s up to let someone know you understand.
  • If necessary, communicate in another way by writing your message on a white board or scheduling a Zoom call.

Alliance Benefit Solutions is ready to work with you. Give us a call today at (732) 908-7500!


  • American Speech-Language-Hearing Association, “Communicating Effectively While Wearing a Mask and Socially Distancing”
  • SHRM, “Difficult Conversations: More Difficult Than Ever”
  • GoCo, “5 Tips for Handling Difficult Conversations on Zoom (Or Any Video Call)”

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.

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Tea & Tidbits - American Heart Month (Webinar Video)

Join us as we spill the tea on the latest employment issues.

For thirty minutes each month, the most relevant issues facing the world of employment will be raised, and legal, HR, and benefits perspectives on the issue will be discussed.

February’s program will focus on employees with chronic or sudden heart health conditions to honor American Heart Month. We will discuss leaves of absence, accommodations, and insurance options to supplement group health plans to offset copays, deductibles, and other out-of-pocket costs for your employees.

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Marketplace Special Enrollment Period Announced - Downloadable PDF

On January 28, 2021, in response to the COVID-19 pandemic, • President Biden issued an executive order requiring the U.S. Department of Health and Human Services (“HHS”) to consider having a mid-year special enrollment period for the federally-facilitated Marketplace (“FFM”) to enable uninsured and under-insured consumers to obtain healthcare coverage. As a result, HHS designated February 15 to May 15, 2021, as • a special enrollment period for consumers to obtain individual health insurance coverage from the FFM without a qualifying event (such as birth of a child).

The President’s executive order also requires federal • agencies to review their existing actions for the purpose of protecting and strengthening Medicaid and the Affordable Care Act (“ACA”), and for the purpose of making high-quality healthcare accessible and affordable.

Mid-Year Marketplace Special Enrollment Period

HHS announced that consumers in 36 states served by the FFM have a special enrollment period from February 15 to May 15, 2021 to apply for and enroll in an individual health insurance policy (also called a “qualified health plan”) from the FFM. The following rules apply during the mid-year special enrollment period:

  • Consumers in any of the 36 states served by the FFM can apply for an individual health insurance policy or plan by accessing the platform directly, or by telephoning the FFM’s call center, or through direct enrollment channels.
  • Consumers are not required to provide documentation of a qualifying event (such as loss of a job or birth of a child), which is typically required to elect coverage during a special enrollment period.
  • Consumers have 30 days after they submit their application to choose a plan. Healthcare coverage begins prospectively on the first day of the month after plan selection.
  • Current enrollees can change to any available plan in their area without restriction to the same level of coverage as their current plan.

The President’s executive order does not apply to the 14 states (which include New York, New Jersey, Pennsylvania and California) and the District of Columbia that have their own state-based Marketplace. However, states with a state- based Marketplace are expected to adopt a similar mid-year special enrollment period. To date, California and New Jersey have adopted a similar special enrollment period. Each state- based Marketplace may impose different restrictions on the mid-year special enrollment period (for example, regarding whether consumers can switch from one plan to another). Consumers with access to a state-based Marketplace should be advised to contact the Marketplace directly with any questions that they may have.

As a reminder, IRS Notice 2014-55 allows for an optional plan amendment that would permit employees to make a mid-year election under a section 125 cafeteria plan to revoke coverage for the employee and related individuals under a group health plan (other than a health flexible spending arrangement), if the following requirements are met:

  1. The employee and related individuals are eligible for a special enrollment period to enroll in an individual health insurance policy or plan from an insurance marketplace; and
  2. The employee and related individuals are enrolling in the marketplace plan; and
  3. The new coverage from the marketplace constitutes “minimum essential coverage” for purposes of the ACA and is effective beginning no later than the day immediately following the last day of the group coverage that is being revoked.

According to IRS Notice 2014-55, the employer may rely on the employee’s reasonable representation that the above requirements have been met. Cafeteria plan documents must include this permitted election change provision and carrier approval would be necessary.

Review of Past Agency Actions

The President’s executive order directs all federal agencies to review existing regulations, orders, guidance documents, policies, and any other similar agency actions to determine whether they are inconsistent with the policy of protecting and strengthening Medicaid and the ACA and making high-quality healthcare accessible and affordable. The agencies are also directed to consider – as soon as practicable and appropriate – whether to suspend, revise, or rescind past agency actions that are inconsistent with the above policy.

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