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How to apply the plan's portion of a rebate is subject to ERISA's standards of fiduciary conduct
The Patient Protection and Affordable Care Act (PPACA or ACA) requires insurers to report their Medical Loss Ratios (MLRs) to regulators and to meet certain MLR targets. If an insurer exceeds the minimum MLR, the insurer must issue a rebate to the policyholder. The first of these annual rebates is due in August 2012. How are rebates determined?
Rebates are determined according to the prior year’s MLR. Rebates issued in August 2012 will depend on 2011 performance and are not group or individual specific. They are calculated at the carrier and market segment (i.e., individual, small group and large group) level. In some instances the individual and small group markets may be merged.
The ACA defines a small employer as an employer having at least one but no more than 100 employees. However, it provides states the option of defining small employers as having at least one but not more than 50 employees in plan years beginning before Jan. 1, 2016.
Generally, if you have fewer than 100 employees (using the definition for full-time equivalents) you will be purchasing coverage in the small group market.
The MLR is calculated by dividing the medical expenses of the carriers’ segment by the net earned premiums. Medical expenses include claims and activities to improve health care quality as defined in the rules. Net earned premiums include premiums paid by the policyholder minus taxes, licensing and regulatory fees. The MLR threshold for large groups (51+ benefits eligible) is 85 percent and the threshold for small groups (50 or fewer benefit eligible employees) is 80 percent. Certain states have received exemptions until 2014 that allow the MLR to be lower than those levels. In the case of states having more stringent MLR requirements, those requirements supersede the lower federal requirements.
Below are answers to common questions about MLR rebates.
My plan’s paid loss ratio is less than the target. Do I get a rebate?
Not necessarily. Rebates are not issued based on a single plan’s performance. Rebates depend on the insurer’s performance in a given market segment as outlined above.
How will insurers issue rebates?
For group health plans, insurers must issue the rebates to the plan. The plan must then pay out the rebates to the plan’s participants. If a group health plan terminates after the plan year but before the insurer issues rebates and the insurer cannot locate the plan, the insurer must attempt to issue the rebates directly to participants.
Who may receive a rebate?
Only fully insured policyholders are eligible. A policyholder can be an individual or an employer-sponsored group health plan. In the case of a group health plan receiving a rebate, Employee Retirement Income Security Act (ERISA) regulations regarding fiduciary duty apply. If the rebate is small—$20 or less for a group health plan—the insurer does not need to issue the rebate to the plan.
What should you do if your group receives a rebate?
The Department of Labor (DOL) issued Technical Release No. 2011-04 outlining the proper handling of rebates. The release states that:
"If the participants and the employer each paid a fixed percentage of the cost, a percentage of the rebate equal to the percentage of the cost paid by participants would be attributable to participant contributions. Decisions on how to apply or expend the plan’s portion of a rebate are subject to ERISA’s general standards of fiduciary conduct. Under section 404(a)(1) of ERISA, the responsible plan fiduciaries must act prudently, solely in the interest of the plan participants and beneficiaries, and in accordance with the terms of the plan to the extent consistent with the provisions of ERISA.
"With respect to these duties, the Department notes that a fiduciary also has a duty of impartiality to the plan’s participants. A selection of an allocation method that benefits the fiduciary, as a participant in the plan, at the expense of other participants in the plan, would be inconsistent with this duty. In deciding on an allocation method, the plan fiduciary may properly weigh the costs to the plan, the ultimate plan benefit, and the competing interests of participants or classes of participants provided such method is reasonable, fair and objective. For example, if a fiduciary finds that the cost of distributing shares of a rebate to former participants approximates the amount of the proceeds, the fiduciary may decide to allocate the proceeds to current participants based upon a reasonable, fair and objective allocation method.
"Similarly, if distributing payments to any participants is not cost-effective (e.g., payments to participants are of de minimis amounts, or would give rise to tax consequences to participants or the plan), the fiduciary may utilize the rebate for other permissible plan purposes including applying the rebate toward future participant premium payments or toward benefit enhancements."
When will insurers issue the rebates?
Under the regulations, the first rebates are due Aug. 1, 2012, although the precise dates of receipt may be before the deadline, depending on the insurer. Insurers will send written notices to subscribers informing them that a rebate has been issued. Plan administrators should be prepared to field questions from employees who receive such notices. The model notice can be viewed here.
Additionally, insurers not issuing a rebate must send letters to subscribers explaining the MLR rule notifying their health insurer had a medical loss ratio that met or exceeded the requirements. The model notice can be viewed here.
How much might the rebates be worth?
The not-for-profit Kaiser Family Foundation released statistics garnered from insurers’ filings to the National Association of Insurance Commissioners. In the large-group segment, total reported rebates are $541 million nationwide. Among the insurers, 125 reported they expect to issue rebates to large groups covering 7.5 million enrollees. Insurers in 14 states do not expect to issue rebates in 2012. The largest average per-enrollee rebates projected are in Vermont ($386), Nebraska ($248), Minnesota ($146), New York ($142) and North Carolina ($121).
Among large group enrollees, 19 percent are projected to receive rebates nationwide. Taken in total, the average annual rebate in the entire large group segment per year will be $14 per enrollee, according to rebate estimates based on insurer filings to the National Association of Insurance Commissioners (NAIC).
Additional data compiled by the Kaiser Family Foundation can viewed here.
Bob Marcantonio is a consultant in the health and welfare practice at Cammack LaRhette Consulting.
© 2012, Cammack LaRhette Consulting. All rights reserved.Republished with permission.
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