DOL's Critical Role in Health Care Policy

On February 10, the U.S. Senate confirmed Tom Price as Secretary of Health and Human Services (HHS). The following week, after Andrew Puzder withdrew his candidacy, President Trump announced his nomination of Alexander Acosta for Secretary of Labor. As the newly confirmed Secretary of HHS, Price is in a pivotal position to shape the future of the Affordable Care Act (ACA) and other health policies. However, as Secretary of Labor, Acosta will also have a significant but little-discussed role in health policy, vested in the Employee Benefit Security Administration (EBSA) within the Department of Labor (DOL).

DOL’s Critical Role in Health Care Policy

EBSA safeguards private sector employee benefit plans, including employer-sponsored health plans. While a great deal of media attention has focused on the health exchanges, the marketplace covers fewer than 13 million people compared to 150 million covered by employer-sponsored insurance. This 150 million includes more than half of the non-elderly population. The Trump administration has yet to name an Assistant Secretary of Labor for EBSA, filling the vacancy left by Phyllis Borzi. However, Secretary Acosta and the person charged with leading EBSA will have several opportunities to shape policies that directly affect American workers and their health coverage.

Affordable Care Act Roll-Back or Replacement

EBSA is primarily an enforcement agency, but also played a pivotal role in shaping the final rules and regulations surrounding the ACA. In partnership with the HHS, EBSA authored key rules and guidance for several ACA-related issues including preexisting condition exclusions, dependent coverage, and appeals. EBSA also took the lead in enforcing the ACA. In the Trump administration, EBSA will be intimately involved in any roll-back of the ACA and any implementation related to an ACA replacement. The agency will work on the front-line with HHS to translate laws that will be enforced and provide compliance guidance to private sector benefit plans affected by the changes.

Form 5500 Revisions

EBSA, along with the Internal Revenue Service and Pension Benefit Guarantee Corporation, has regulatory authority over the Form 5500 series, which is a set of forms and schedules that private sector benefit plans file annually. Under the current version of the Form 5500, the vast majority of health plans are exempt from filing. In July 2016, however, EBSA, IRS, and PBGC proposed a rule to greatly expand reporting requirements, filling the information gap left by the current Form 5500 rules. As the rule-makers have yet to respond to comments, the new administration will have an opportunity to shape the final content of this rule or even delay it entirely.

Disability Claim Regulation

EBSA adopted a disability claim regulation that would extend existing health claim regulations to the disability sphere. As my colleague Carolyn Meier shares, many of the provisions of this rule address procedural issues such as timeliness requirements for claim review and appeals. The rule also specifies important disclosure requirements for denying disability claims. Although scheduled to go into effect at the end of January 2017, administration changes have prompted an additional review period, leaving the rule in limbo.

Through these regulations, EBSA impacts how health plans are administered and how existing laws are enforced. Since most Americans receive health benefits through their employers, EBSA’s purview over private sector plans gives it the responsibility to oversee a large portion of the American health system. If confirmed, Alexander Acosta and his yet-to-be-named Assistant Secretary will be at the forefront of implementing health policy changes.