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Employee Benefits

The Difference of a Single Voice

Claire Pancerz
Claire Pancerz
Compliance Director, Employee Benefits

I think we all have that friend who refuses to vote, saying that their lone vote is not enough to sway any election, so what’s the point? Corporations can be like that, too. No, I’m not referring to the Supreme Court decision in Citizen’s United v. Federal Election Commission, which allows labor unions, trust funds, and corporations to spend money on electioneering communications. I’m talking about the times that a business may refuse to weigh in on critical issues that concern it when a law is being drafted or a regulation has been proposed.

Federal vs. State Legislation

Did you know that, on average, 19.3 percent of state Senate bills and 13.3 percent of state House bills are enacted compared with 3.6 percent and 1.9 percent of U.S. Senate and House bills, respectively? Of course, there are 50 states and only one federal government, so it stands to reason that the states will generate more legislation, but it’s important to note the enacted bills in double-digits at the state level!

I think that many of us might say that at the federal level we’d like to have a little less conflict and a little more action (to semi-paraphrase Elvis). A Pew Research Center analysis has found that, on average, Democrats and Republicans are farther apart ideologically today than at any time in the past 50 years. Where the federal government can’t — or won’t — legislate, items are left to the states. This can lead to a crazy quilt of differing legislation that can make a multi-state employer pull out its hair.

Let’s take a couple of current examples.

Paid Family Medical Leave

First up, the proliferation of state and local leaves across the U.S.

Did you know 10 states currently have paid family medical leave (PFML) on the books? California, Colorado, Connecticut, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, and the District of Columbia all are in varying phases of rolling out PFML. Another 15 states have a family medical leave law (unpaid).

It’s nearly impossible to draft a single policy to address state medical leaves, too. While there are some commonalities, there are many more differences — who can take the leave, under which circumstances, for what time period, on behalf of which family members, and whether other types of leave are required to be used first.

The COVID-19 pandemic laser-focused some state legislatures on expanding leaves in new ways that made sense for constituencies battered by the pandemic. Even in the case where there is a national family medical leave law (and has been since 1993), enough states have found the national law to be wanting that they decided to step into the breach and create their own.

Pharmacy Laws

Let’s move on to pharmacy laws — another area of practically volcanic action.

A 2019 report from the National Conference of State Legislatures indicated that states consider, on average, one thousand measures per year to address pharmaceuticals. In 2018, 94 bills were signed in 39 states. Of the states that were in session, California alone passed 10+ bills, and seven other states passed between six and nine bills each.

The major topics confronted during 2018 were:

  • Cost-sharing and deductibles — including discount coupons
  • Medicaid pharmaceutical use and cost
  • Pharmaceutical pricing and payment including rebates, discounts, generic vs. brand, transparency, etc.
  • Pharmacy benefit managers or PBMs including elimination or restriction of claw backs, audit standards, and price gouging

Pricing is always on everyone’s mind. In 2019, eight states passed laws affecting the import of pharmaceuticals to try to help with rising costs. But the patchwork of laws in this space serves not only to highlight my point that this is a lot for PBMs, employers, and carriers to keep up with, it potentially makes things easier for the pharmaceutical industry to lobby and litigate against anti-price gouging laws.

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Make Your Voice Heard

How does this tie back to my point about our non-voting friends? Well, federal regulations usually will have a comment period that extends for 60 days. Regulators have an online comment forum that can be used for businesses to point out potential negative ramifications of a rule. These don’t require any specific kind of expertise to respond — you simply have to say, “This would be bad for my business, because…”.

Writing a comment back to regulators within the comment period is something genuinely appreciated by them. Some recent Health and Human Services (HHS) regulations even referenced disappointment when they received exactly zero comments on proposed legislation. Regulators have not always been businesspeople in their past lives, and so they read and consider thoughtful comments. Your words don’t go into a vacuum.

With state laws (requesting regulatory comments follows much the same format at a state level as at a federal level), you usually have a couple of opportunities to make your voice heard. Holmes Murphy works closely with the National Association of Health Underwriters (NAHU), which represents more than 100,000 licensed health insurance agents, brokers, general agents, consultants, and benefit professionals through more than 200 chapters across America.

Most of the larger chapters have lobbyists working behind the scenes to see that sensible bills come to fruition, while those that would continue to raise costs for consumers and employers are challenged.

In cases where some of those efforts are uncertain and educating legislators is more difficult, either NAHU or the local chapter will issue an Operation SHOUT. One of these was shared with clients in the April 14, 2022, edition of Holmes Murphy’s Compliance & Benefits Alert and concerned support for federal H.R. 5318.

Operation SHOUTs can come from a state level or a federal level and are your opportunity to weigh in on a specific issue. With only a few mouse clicks, you can make your voice heard. This isn’t like the old days, where you had to write and mail a letter through the U.S. Post Office (gasp). When it takes so little to communicate your corporate position, and it means so much to legislators and governors wanting to do the right thing by their constituents, I hope that you will either continue — or begin — to make your voice heard.

There is a saying that “closed mouths don’t get fed.” Make sure you open your mouth, use your voice, and participate in curtailing laws that could have a negative impact on your employees and their benefits. The process is set up to make it easy for you to participate; don’t mistakenly believe that your voice doesn’t count. It does.

If you need help in figuring out how to take action or just have questions, please don’t hesitate to reach out to us! We’d be happy to help you.

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