Federal Trade Commission Weighs in On Non-Competes 

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On Tuesday, April 23rd, the Federal Trade Commission (FTC) voted 3-2 to ban non-compete agreements. The rule was first proposed in January 2023, and the hope was that this change would increase worker’s earnings by almost $300 billion each year.  

There were thousands of public comments sent in with many favoring the proposal. Interestingly enough, a large portion of those comments came from health care workers. 

The FTC estimates that upwards of 30 million workers are subject to non-compete agreements. It is their contention that these agreements prevent employees from working for competitors or starting a competing business after they leave a job. That, according to the agency, is unfair and restricts competition. This is viewed as a violation of Section 5 of the FTC Act. 

The final rule would ban new non-compete agreements for all workers and require employers to let current and past employees know they will not enforce them. Employers will also have to discard any existing non-compete agreements for most employees. One change in the final rule allows agreements to remain in effect for senior executives, which the rule defines as someone earning more than $151,164 annually in a policy-making position. 

The agency believes that banning non-competes will allow for: 

  • Reduced healthcare costs; 
  • Increases in new business formations; and 
  • Higher wages for workers. 

The effective date of the new rule will be 120 days after it is published in the Federal Register. As with many controversial rules and regulations, opponents such as pro-business groups have already indicated they will be taking legal action to block the implementation of the new rule. 

Business groups favor non-compete agreements, arguing that they are critical for protecting proprietary information and intellectual property. The new rule does nothing to alter current methods that protect that information, including nondisclosure and confidentiality agreements. Business groups also firmly question the FTC’s authority to even issue the ban, both retroactively and going forward. The dissenting commissioners on the FTC said they do not support non-compete agreements but contend that their agency does not have the authority to issue the rule without a Congressional directive. Congress has not given the agency explicit authority to ban non-compete agreements. Though there have been bills introduced in the past, none have passed into law.  

The U.S. Chamber of Commerce, the largest pro-business lobbying group in the country, has stated that it plans to sue to block the rule. It appears there will likely be a protracted court battle on this issue, and it would not be surprising if it reached the Supreme Court.  

In contrast, the Biden administration has commented in favor of the rule, arguing that non-compete agreements limit workers’ mobility, depress their wages, and harm entrepreneurship and competition in the U.S. economy. 

Given the diverse opinions already shared about this new rule, we anticipate that it may evolve over time, and will continue to provide updates if and when they become available. 

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Invisible Issues, Visible Solutions: Rethinking Mental Health at Work

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As mental health awareness grows, companies must change strategies, moving beyond traditional wellness perks that may feel static and nonpersonal, such as workout programs and mental health days, to tackle many visible and nonvisible challenges. From the trauma of global pandemics to anxiety and depression, companies are stepping up. They’re crafting cultures where it’s okay to talk about mental health openly, boosting support through technology like telehealth, and recognizing the real ROI that comes from happier, healthier employees. It’s not just about ticking boxes; it’s about building resilience, reducing stigma, and fostering an environment where everyone can thrive.

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Annual RxDC Reporting Deadline Drawing Near

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The Consolidated Appropriations Act of 2021 established a new data collection requirement for employers of all sizes and funding structures, where such entities must now submit annual prescription drug data collection (RxDC) reports on their plan’s prescription drug and health care spending to the Centers for Medicare and Medicaid Services (CMS). The calendar year 2023 reports are due by June 1, 2024. We encourage employers to ensure that these reports are submitted accurately and timely, as the “good faith” compliance standard applied to the initial 2020 and 2021 RxDC filings is no longer available. 

RxDC reports from employer group health plans must include a file of general plan information (P2), details about the plan’s enrollment information and allocation of premium dollars (D1), and seven data files (D2-D8) that primarily reflect statistics about prescription drug usage and medical claims data.  Narrative files explaining the data contained in the D1-D8 reports are also required. Of note, RxDC reports are not required for retiree-only plans, excepted benefits, or account-based plans like HRAs, but they are required for all traditional group health plans in all U.S. states and territories. 

Because employers do not typically have access to the claims data required to prepare D2-D8 files and their accompanying narratives, employers are permitted to have multiple vendors submit data files on behalf of their plan. Plan sponsors will likely rely on as many as three vendors to satisfy these complex reporting requirements: 

  • PBMs will generally complete D3-D8 files (which include pharmacy data files and related data files). 
  • Carriers and TPAs will generally complete and submit D2 files (which include health care spending files). 
  • Depending on the circumstances, employers or their compliance vendors, carriers, or TPAs will generally complete and submit D1 files (including information about plan enrollment and premium data). 

Each separate filing must also be accompanied by a P2 cover letter-type filing identifying the plan(s) included in that filing. 

The 2023 RxDC instructions include a notable difference from previous years in that this is the first year that CMS will enforce the previously suspended aggregation restriction. This restriction prohibits the D1 medical premium and life years data and the D3-D8 pharmacy benefit data from being reported at a “less granular level” than the D2 medical benefit data. In other words, if the D2 is submitted on a plan-level basis, the D1 and D3-D8 files must be submitted similarly; they cannot be submitted by market segment unless the D2 file is also provided on a market segment-level basis. The D1 and D3-D8 files may be submitted at a more granular level than the D2 file, meaning that these reports can be created on a plan-level basis even if D2 reflects market segment-level information. 

The most significant challenge many employers face for RxDC reports is identifying a solution for submitting the D1 data, which needs to be filed along with its own P2. Even though the P2 plan information and D1 premium data files are comprised primarily of information employers should know about the health plan they have offered, there are complex requirements within the P2 and D1 file specifications, and it takes weeks to obtain the account with CMS’s Health Insurance Oversight System (HIOS) required for their submission. As a result, most employers will need assistance from a vendor or compliance expert to create and submit these reports through HIOS. 

Employers working with a health insurer, TPA, or PBM to submit D1 files on their behalf will likely encounter tight deadlines to provide their vendor employer-specific information for these filings.  In some cases, these deadlines may have already passed; in others, a plan’s vendor may refuse to help submit D1 data. The reluctance to help and tight deadlines exist because carriers, TPAs, and PBMs must focus on the “heavy lift” that submission of D2-D8 claims files requires.  

For employers whose carrier/TPA/PBM is unwilling or unable to submit D1 on their behalf or for those who have missed their vendor’s deadline, MZQ Consulting is available to prepare and submit D1 and P2 files for your organization. Click here to get more information.  

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