Government, Courts, and the World of Work

On June 21, 2010, Interim Final Regulations implementing major provisions of the Patient Protection and Affordable Care Act (the “Act”), including provisions relating to preexisting conditions, lifetime and annual limitations on benefits, rescissions on coverage, dollar limitations on benefits, and claims’ appeals, were issued by the U.S. Departments’ of Health and Human Services, Labor and Treasury.  Most of the provisions will become effective on or after September 23, 2010 and apply to insured and self-insured plans.  State laws that are more favorable to consumers remain in effect.

Preexisting Conditions Prohibited

The regulations amend the Health Insurance Portability and Accountability Act (HIPAA) relating to preexisting conditions.  For plan years beginning on or after January 1, 2014, a group health care plan may not impose any preexisting condition exclusion, but for enrollees who are under 19 years of age, this prohibition becomes effective for plan years on or after September 23, 2010.  Grandfathered plans (see previous post) must comply with this regulation.

Lifetime Limits on Coverage Eliminated

For plan years beginning on or after September 23, 2010, lifetime limits on “essential health benefits” will be prohibited regardless of whether a plan is grandfathered.  Essential health benefits include ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, rehabilitation and habilitation services and devices, laboratory services, preventive and wellness services and chronic disease management, pediatric services, including dental and vision care.  

Individuals who reached, or will reach, a lifetime limit prior September 23, 2010 and who are still eligible for health care benefits must be provided with a notice that the lifetime limit no longer applies.  If such individuals are no longer enrolled in the plan, they must be given an opportunity to be enrolled as a special enrollee; that is, they must be given the right to enroll in all the benefit plans available to similarly situated individuals upon initial enrollment.   The notice and special enrollment opportunity must be provided beginning not later than the first day of the first plan year beginning on or after September 23, 2010.

Annual Limits on Dollar Value of Care Eliminated

The regulations phase out the use of annual dollar limits on essential health benefits and applies to all plans, including grandfathered plans.   The rule does not apply to health flexible spending arrangements (health FSAs), which are specifically limited to $2,500 (indexed for inflation) per year, Health Savings Accounts (HSAs) or Medical Savings Accounts (MSAs).

While the regulations generally prohibits annual limits on the dollar value of benefits, they allow for “restricted annual limits” with respect to essential health benefits for plan years beginning before January 1, 2014.  Annual limits on the dollar value of essential health benefits may not be less than the following for plan years beginning before January 1, 2014:

• For plan years beginning on or after September 23, 2010 but before September 23, 2011 - $750,000;
• For plan years beginning on or after September 23, 2011 but before September 23, 2012 - $1.25 million;
• For plan years beginning on or after September 23, 2012 but before January 1, 2014 - $2 million.

Annual dollar limitations imposed by Health Reimbursement Arrangements (HRAs) are permissible as long as the restrictions are satisfied when combined  with other coverage of essential health benefits.

Annual dollar limits can be imposed on non-essential benefits.

Rescissions Prohibited 

Beginning on or after September 23, 2014, insurers and insured and self-insured health care plans, including grandfathered plans,  will no longer be able to rescind or fail to renew essential health coverage except in cases of fraud or intentional misrepresentation.  Where a plan seeks to rescind coverage, at least 30-days advance notice must be given.  Future guidance on what constitutes adequate notice is expected.

Plans may still discontinue health coverage that is effective retroactively for failure to timely pay required premiums and employers can discontinue group coverage prospectively.

Choice of Doctors

Beginning September 23, 2010, unless grandfathered, plans must provide notice to covered individuals that they are entitled to designate any available participating primary care provider as their provider.  Parents may choose any available participating pediatrician for their children.  Required referrals for OB-GYN care are prohibited.  Higher co-pays for out-of-network emergency care are likewise prohibited.

Insurance Industry Reform

Beginning January 1, 2011, small group issuers must spend at least 80% of premiums on direct medical care and efforts to improve health care quality; larger group issuers must spend at least 85%.  States will be eligible to apply for grants should they choose to do so to establish an office to review insurance premium increases.

Must Attend EANJ Health Care Reform Seminars Located Conveniently Near You.

On June 14, 2010, guidance explaining how group health plans are “grandfathered” from some healthcare changes under the Patient Protection and Affordable Care Act and how grandfathered status may be lost was issued by the U.S. Departments Health and Human Services and Treasury.

A grandfathered health plan is an insured or self-insured health plan in existence on March 23, 2010. Grandfathered plans do not need to immediately comply with all provisions under the healthcare legislation. The primary advantages to being a grandfathered plan include the ability to avoid dependent coverage up to age 26 if other coverage is available until 2014; and to avoid the need to implement an external review process in accordance with minimum standards to be established by the Department of Health and Human Services (for self-insured plans) and to avoid new internal appeals procedures (which already exist under ERISA). Important provisions contained in the guidance are as follows:

Protecting Patients’ Rights in All Plans:

All health plans - whether or not they are grandfathered plans - must provide certain benefits for plan years starting on or after September 23, 2010 including:

• No lifetime limits on coverage for all plans;

• No rescissions of coverage when people get sick and have previously made an unintentional mistake on their application;

• Extension of parents’ coverage to young adults under 26 years old. (Grandfathered plans may exclude this coverage if the adult child is eligible for coverage under another employer-sponsored plan.)

For people who get their health insurance through employers, additional benefits will be offered, irrespective of whether their plan is grandfathered, including:

• No coverage exclusions for children with pre-existing conditions; and

• No “restricted” annual limits (e.g., annual dollar-amount limits on coverage below standards to be set in future regulations).

Additional Consumer Protections Apply to Non-Grandfathered Plans:

Grandfathered health plans will be able to make routine changes to their policies and maintain their status. These routine changes include cost adjustments to keep pace with medical inflation, adding new benefits, making modest adjustments to existing benefits, voluntarily adopting new consumer protections under the new law, or making changes to comply with State or other Federal laws. Premium changes are not taken into account when determining whether or not a plan is grandfathered. Plans will lose their grandfathered status if they choose to make significant changes that reduce benefits or increase costs to consumers. If a plan loses its grandfathered status, then consumers in these plans will gain additional new benefits including:

• Coverage of recommended prevention services with no cost sharing; and

• Patient protections such as guaranteed access to OB-GYNs and pediatricians.

Under the Act, these requirements are applicable to all new plans, and existing plans that choose to make the following changes that would cause them to lose their grandfathered status. Compared to their policies in effect on March 23, 2010, grandfathered plans:

• Cannot Significantly Cut or Reduce Benefits. For example, if a plan decides to no longer cover care for people with diabetes, cystic fibrosis or HIV/AIDS.

• Cannot Raise Co-Insurance Charges. Typically, co-insurance requires a patient to pay a fixed percentage of a charge (for example, 20% of a hospital bill). Grandfathered plans cannot increase this percentage.

• Cannot Significantly Raise Co-Payment Charges. Frequently, plans require patients to pay a fixed-dollar amount for doctor’s office visits and other services. Compared with the copayments in effect on March 23, 2010, grandfathered plans will be able to increase those co-pays by no more than the greater of $5 (adjusted annually for medical inflation) or a percentage equal to medical inflation plus 15 percentage points. For example, if a plan raises its copayment from $30 to $50 over the next 2 years, it will lose its grandfathered status.

• Cannot Significantly Raise Deductibles. Many plans require patients to pay the first bills they receive each year (for example, the first $500, $1,000, or $1,500 a year). Compared with the deductible required as of March 23, 2010, grandfathered plans can only increase these deductibles by a percentage equal to medical inflation plus 15 percentage points. In recent years, medical costs have risen an average of 4-to-5% so this formula would allow deductibles to go up, for example, by 19-20% between 2010 and 2011, or by 23-25% between 2010 and 2012. For a family with a $1,000 annual deductible, this would mean if they had a hike of $190 or $200 from 2010 to 2011, their plan could then increase the deductible again by another $50 the following year.

• Cannot Significantly Lower Employer Contributions. Many employers pay a portion of their employees’ premium for insurance and this is usually deducted from their paychecks. Grandfathered plans cannot decrease the percent of premiums the employer pays by more than 5 percentage points (for example, decrease their own share and increase the workers’ share of premium from 15% to 25%).

• Cannot Add or Tighten an Annual Limit on What the Insurer Pays. Some insurers cap the amount that they will pay for covered services each year. If they want to retain their status as grandfathered plans, plans cannot tighten any annual dollar limit in place as of March 23, 2010. Moreover, plans that do not have an annual dollar limit cannot add a new one unless they are replacing a lifetime dollar limit with an annual dollar limit that is at least as high as the lifetime limit (which is more protective of high-cost enrollees).

• Cannot Change Insurance Companies. If an employer decides to buy insurance for its workers from a different insurance company, this new insurer will not be considered a grandfathered plan. This does not apply when employers that provides their own insurance to their workers switch plan administrators or to collective bargaining agreements.

A plan retains its grandfathered status when changes effective after March 23, 2010 pursuant to written amendments to a plan were adopted on or before March 23, 2010.

Protecting Against Abuse of Grandfathered Health Plan Status:

To prevent health plans from using the grandfather rule to avoid providing important consumer protections, the regulation provides for promoting transparency by requiring a plan to disclose to consumers every time it distributes materials whether the plan believes that it is a grandfathered plan and therefore is not subject to some of the additional consumer protections of the Act. This allows consumers to understand the benefits of staying in a grandfathered plan or switching to a new plan.

• The plan must also provide contact information for enrollees to have their questions and complaints addressed;

• Revoking a plan’s grandfathered status if it forces consumers to switch to another grandfathered plan that, compared to the current plan, has less benefits or higher cost sharing as a means of avoiding new consumer protections; or

• Revoking a plan’s grandfathered status if it is bought by or merges with another plan simply to avoid complying with the law.

June 18th Webinar: What HR Needs to Know about the Patient Protection and Affordable Care Act before Leaving for Vacation.

The Patient Protection and Affordable Care Act requires employers with 200 or more full-time employees to automatically enroll all new full-time employees in the firm’s group health care plan.  Current employees will be automatically re-enrolled.  Employees will be allowed to opt out, similar to how many employers enroll employees in a 401(k) plan.

Important questions have emerged.  First, it is unclear when this requirement becomes effective, since the specific statutory section is silent on when auto enrollment becomes effective.  The Society for Human Resouce Management website suggests the intent of the missing effective date is to make auto-enrollment effective on January 1, 2014, when other provisions, such as the employer “shared responsibility” penalty become effective.  However, the legal publisher CCH believes that the correct view is that when a section has no effectice date, it is effectively immediately.  In any event, the section requires regulations to implement, so time will tell.

More troubling is the fact that the auto-enrollment section does not define “full-time” employee.  In another section, “full-time” is defined as any employee who works on average at least 30 hours per week.  Again, this definition refers to whether an employer with 50 or more full-time employees will be assessed a shared responsibility penalty.  But read casually,  this definition means that any employee who works on average at least 30 hours per week must be auto-enrolled in the group health care plan, a dramatic consquence for the many employers that require at least 35 hours for full-time status and therefore eligibility for health care benefits.

John Sarno, EANJ’s president believes that the statute should be read as requiring the auto-enrolling of employees who work at least 30 hours per week if they are otherwise eligible for health care benefits under the employer’s policy.  However, Frank Palmieri, EANJ’s legal advisor, tentatively thinks that the law requires plans (insured and self-insured) to offer health care benefits to all employees who work at least 30 hours per week, regardless of the employer’s policy.   However, he says that his views require constant update.

What does HR need to know about the Patient Protection and Affordable Care Act before leaving for summer vacation?  Click here.