Bright Side of Benefits – Episode 2: Key Legislative Takeaways from the 41st ECFC Annual Conference

Bright Side of Benefits - Episode 2: Key Legislative Takeaways for Consumer-Driven Benefits from the 41st ECFC Annual Conference

In a special ‘On the Road’ episode of the Bright Side of Benefits, host and ECFC board member Becky Seefeldt discusses what she gleaned from the 41st ECFC Annual Conference, where she and other members met with congressional staff members and representatives from various regulatory agencies to improve understanding and drive change for consumer-driven benefits.

Listen to Episode 2 below:

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TRANSCRIPT – EPISODE 02: Key Legislative Takeaways from the 41st ECFC Annual Conference


Hi, I’m Becky Seefeldt here with BRI’s second episode of the Bright Side of Benefits. This is a series for benefits professionals and consultants where we talk about the latest news and trending topics in employee benefits – all in easy-to-digest, bite-sized snippets. I’m the VP of Strategy at Benefit Resource.

In addition to my work with BRI, I also serve on the Board of ECFC, which is an organization dedicated to the advocacy and education of consumer-driven benefits. This past week, ECFC held its annual conference in D.C. After two years of virtual interactions, it was a really great opportunity to reconnect and strengthen our shared vision for improving consumer-driven benefits.

Today, I want to spend a little time updating you on some of those key takeaways from ECFC.

  1. The legislative priorities for improving consumer-driven benefits
  2. What we might expect in the years to come
  3. What is top of mind with regulators

So let’s jump into the legislative priorities for improving consumer-driven benefits.

The Legislative Priorities for Improving Consumer-Driven Benefits

Before we go forward, we gotta look back a little bit.

Over the past few years, ECFC has really been a strong advocate for many of the FSA relief efforts that we saw during the pandemic. We also saw the positive results of our advocacy efforts when OTC Drugs & Medicines once again became eligible under FSAs, HSAs, and HRAs. This was really a focal point for ECFC since it was repealed under the Affordable Care Act.

Now, with the pandemic appearing to be transitioning to more of an endemic phase, there are a few longer-term priorities that we are working to advance. So let’s start with some of those.

  • First, we’d like to see some common sense improvements to HSAs and FSAs. Those can take a few different forms. But, the first one is really regarding HSAs and improving the ability and how they pair with High-Deductible Health Plans. And, making them easier to work with things with limited benefits such as Indian Health Services, Health Care Sharing ministries, and allowing people to participate in HSAs even if they’re getting those limited benefits.
  • Second, we’d also like to see the change to allow telehealth services to be offered without jeopardizing the eligibility to contribute to an HSA. We’ll talk about that one a little bit more in our later regulatory section.
  • Finally, from a Dependent Care FSA perspective, we would like to see the statutory limit permanently increased to $10,500 with additional indexing for inflation. We’d also like to see some of the non-discrimination testing rules overhauled and enhanced to make it a little bit condusive to the current culture. And also, redefining what that highly-compensated employee looks like.
  • The last area that we are looking to advance is to improve Commuter Benefits. In 2017 the bicycle commute program had been revoked. We would like to see this reinstated, but really modernized so that to make it easier for people to utilize the benefit and to allow it to take advantage of some newer forms of transportations such as bike sharing programs.

What we might expect in the year to come

As we look at the year to come, there’s a few things that we can expect.

So, 2022 marks the mid-term election cycle, which always sets the tone a little bit on what we might expect. There is really a limited time (and also a limited likelihood) of legislative action occurring in the current Congress. There is a strong sense that something will need to be done to address the Ukraine/Russia crisis. But beyond that, there is a limited ability for other types of legislation to advance.

As we look at the election, Republicans are anticipated to take the House during the mid-term elections, but the Senate is still very much a toss-up. In anticipation of regaining the House, Republicans have formed what is called the Healthy Futures Task Force which is looking at five areas of health care advancement. One of those areas is under the affordability umbrella. This is going to be the most likely area to affect consumer-driven benefits. The packages that they are proposing and looking into are really looking to make some incremental enhancements to the Affordable Care Act and they’re not necessarily looking to make some sweeping changes.

While we may not see any immediate actions from Congress, we were definitely encouraged by the positive reception we received from both Democrats and Republicans. ECFC members met with over 25 congressional staffers last week and while we are not sure there will be a legislative vehicle to advance initiatives in this session, we were encouraged to keep coming back. U.S. Representative Mike Kelly from Pennsylvania spoke with the group and encouraged us not to give up. As a business owner himself, he said, “You aren’t always going to make a sale on everyone’s first visit, but you can’t give up. You need to be ready for (what he called) the “Be Back’s” because that’s when things really happen.”

And, history had shown that it can take time to make change happen. But, the last few years are a testament to what can happen when you’re persistent and focused in your message.

What is top of mind with regulators

The last topic I wanted to cover is what is top of mind with regulators.

We had an opportunity to speak with representatives from the IRS, Department of Treasury, Department of Health Plan Standards Compliance Assistance, and also the Department of Labor. While Congress enacts the laws, these collective groups are helping to shape how the regulations are enforced.

There are really 4 areas where the discussion centered around.

1) No Surprises Act

First was the No Surprises Act. This is a significant focus for the IRS, the Department of Labor, and the Department of Treasury. The basis of the No Surprises Act is really to protect consumers from certain surprise billings, including air ambulance claims, emergency services, and non-emergency services that are billed as out-of-network even when they were performed at an in-network facility.

Initial guidance was released in July 2021 which really focused on the prevention of those balance billings for those out-of-network coverage events. This means that participants cannot be liable for any amounts above the cost-sharing amounts. There are limited circumstances in which a patient could waive their protections against balance billing for certain ancillary services.

There was also a second set of guidance that was released in October 2021. And this really established the dispute resolution process for payers and providers. The basic idea here is that a provider has 30 days to enter into an open negotiation process in which there is a good faith effort to come to terms with the payer. If they cannot come to terms after exhausting that open negotiation period, parties can initiate an Independent Dispute Resolution process (or IDR process). This enables them to select an approved arbitrator. The arbitration process is binding. And at the end, does result in a payment within 30 days.

There are currently some legal challenges regarding the IDR process and the calculations that are being used to resolve those disputes. However, the overall law and the enforcement is moving forward. Given the legal challenges, the IDR process is not yet operational. So when it does become operational, there will be an additional 15 days that people will have to submit any of those outstanding disputes.

2) Mental Health Parity and Addiction Equity Act enforcement

The second area we talked about the Mental Health Parity and Addiction Equity Act enforcement. A little bit of a mouthful.

In January, the US Department of Labor, Health and Human Services, and Treasury issued their report to Congress. The report includes information that suggests health plans and health insurers are failing to deliver parity for mental health and substance abuse disorders.

The Act itself is actually not new, but the focus on enforcement is. For some background, the Act is intended to ensure that there aren’t any more restrictive burdens – both from a financial perspective but also from a treatment limitation perspective – when considering mental health or substance abuse disorders. So, certainly something that you’ll want to keep top of mind.

3) COVID Testing Coverage Requirements

The third area that we looked at was regarding COVID testing coverage requirements.

There are two COVID testing requirements that have come out. The first one was really geared toward the health plans and stated that COVID testing needed to be provided with no cost-sharing. Then, there was some additional guidance came out in January indicating that over-the-counter COVID-19 testing must also be provided without cost-sharing.

At face value, this seems like a reasonable requirement. However, it was released just days before it became effective. There was also still some debate on what should be covered and how many tests could be covered. But at the general perspective, plans and plan sponsors should be ensuring that employees have access to or can be reimbursed for those over-the-counter COVID antigen tests. There are still some outstanding questions on the full expense for some larger or more comprehensive tests and the volume of tests that need to be covered. But to cover your bases, make sure that there is that coverage for those OTC antigen tests.

4) Telehealth Coverage and HSA eligibility

The last issue is regarding telehealth coverage and HSA eligibility. This is something that gets a little convoluted.

The CARES Act had allowed HSA-eligible high-deductible health plans to cover telehealth without cost-sharing and prior to meeting that deductible. This original provision really expired on December 31st of ’21. Then just recently, the Omnibus Bill passed, and the extension came back. But the challenge here is that it came back for months beginning after March 31, 2022 and will end on months before January 1, 2023. This means that plans which started January 1st of 2022 that left in telehealth coverage are going to find themselves in a potential gap situation.

The plans that covered telehealth and it was not subject to the deductible for the months of January through March would have their HSA eligibility impacted. On an individual basis, if the individuals that have coverage on the last month of the year and maintain coverage through 2023 would actually still be able to fully fund their HSA for 2022 based on the last coverage month rule. If an individual is only covered by a qualifying health plan for a coverage for a period of time, they’re actually going to need to pro-rate their contributions. And that’s going to need to take into account that from January through March, they would be considered to not have had qualifying coverage. And therefore, those are non-coverage months.

We will write more about this, so be sure to check out our blog.


As we look to update and wrap up this episode, I just want to say thanks for listening. If you’d like to stay up-to-date with the latest in benefits, trends and industry news, be sure to visit Sign up for our newsletter, sign up for our blogs.

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And to end on a bright note, here’s a quote from Mark Twain:

The secret of getting ahead is getting started.

-Mark Twain