FAQS ABOUT THE AFFORDABLE CARE ACT
IMPLEMENTATION – PART II
October 8, 2010
Set out below are a number of Frequently Asked Questions (FAQs) regarding implementation of the
market reform provisions of the Affordable Care Act. They have been prepared jointly by the
Departments of Health and Human Services, Labor and the Treasury. Like the FAQs the Departments
issued on September 20, 2010, these FAQs answer questions from stakeholders with a view to
helping people understand the new law and benefit from it, as intended.
The ongoing guidance the Departments are providing reflects our approach to implementation, which
emphasizes assisting (rather than imposing penalties on) plans, issuers and others that are working
diligently and in good faith to understand and come into compliance with the Affordable Care Act, as
well as our commitment to work with families and individuals to make it as easy as possible for them
to obtain the protections and benefits of the new law.
The Departments anticipate issuing further responses to questions and other guidance under the
Affordable Care Act in the future. We hope these publications will be helpful by providing additional
clarity and assistance.
GRANDFATHERED HEALTH PLANS
Q1: Our company sponsors a group health plan for our employees that has been in
effect since March 23, 2010. We and the issuer of the policy under the plan are
considering whether we could make various changes to the plan without losing
grandfathered status. If we avoid making any of the six specific changes described
in paragraph (g)(1) of the interim final regulations relating to grandfathered health
plans, are there other changes to our existing plan/policy that we need to be
concerned could cause it to relinquish grandfathered status?
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A1: No. Paragraph (g)(1) of the Departments’ interim final grandfather regulations provides that any
of six changes (measured from March 23, 2010) are considered to change a health plan so
significantly that they will cause a group health plan or health insurance coverage to relinquish
grandfather status. Briefly stated, these six changes are:
1) Elimination of all or substantially all benefits to diagnose or treat a particular condition.
2) Increase in a percentage cost-sharing requirement (e.g., raising an individual’s coinsurance
requirement from 20 percent to 25 percent).
3) Increase in a deductible or out-of-pocket maximum by an amount that exceeds medical
inflation plus 15 percentage points.
4) Increase in a copayment by an amount that exceeds medical inflation plus 15 percentage
points (or, if greater, $5 plus medical inflation).
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These FAQs do not address the change in issuer question that the Departments stated is under consideration in Q&A 6 of
the FAQs issued on September 20, 2010.
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5) Decrease in an employer’s contribution rate towards the cost of coverage by more than 5
percentage points.
6) Imposition of annual limits on the dollar value of all benefits below specified amounts.
For a plan that is continuing the same policy, these six changes are the only changes that would
cause a cessation of grandfather status under the interim final regulations. (As noted, the
Departments are separately considering under what circumstances otherwise grandfathered
plans may change issuers without relinquishing their status as grandfathered health plans.)
Q2: My plan offers three benefit package options – a PPO, a POS arrangement, and an
HMO. If the HMO relinquishes grandfather status, does that mean that the PPO and
POS arrangement must also relinquish grandfather status?
A2: No. The grandfather analysis applies on a benefit-package-by-benefit-package basis. In this
situation, it is permissible to treat the PPO, POS arrangement, and HMO as separate benefit
packages. Accordingly, if any benefit package ceases grandfather status, it does not affect the
grandfather status of the other benefit packages.
Q3: How do the Departments’ interim final grandfather rules regarding changes in
employer contributions apply where an employer restructures its tiers of
coverage?
A3: The interim final grandfather regulations provide that the standards of paragraph (g)(1)(v) for
employer contributions (listed above as item (5) in Q&A-1) apply on a tier-by-tier basis. As a
result, if a group health plan modifies the tiers of coverage it had on March 23, 2010 (for
example, from self-only and family to a multi-tiered structure of self-only, self-plus-one, self-plus-
two, and self-plus-three-or-more), the employer contribution for any new tier would be tested
by comparison to the contribution rate for the corresponding tier on March 23, 2010. In this
example, if the employer contribution rate for family coverage was 50 percent on March 23,
2010, the employer contribution rate for any new tier of coverage other than self-only (i.e., self-
plus-one, self-plus-two, self-plus-three or more) must be within 5 percentage points of 50
percent (i.e., at least 45 percent).
If, however, the plan adds one or more new coverage tiers without eliminating or modifying any
previous tiers and those new coverage tiers cover classes of individuals that were not covered
previously under the plan, the new tiers would not be analyzed under the standards of
paragraph (g)(1). Therefore, for example, if a plan with only a self-only coverage tier added a
family coverage tier, the level of employer contribution toward the family coverage would not
cause the plan to lose grandfather status.
Q4: If an employer plan sponsor raises the copayment level for a category of services
(such as outpatient or primary care) by an amount that exceeds the standards set
forth in paragraph (g)(1) of the interim final regulations, but retains the copayment
level for other categories of services (such as inpatient care or specialty care), will
that cause the plan to relinquish grandfather status?
A4: Yes. Each change in cost sharing is separately tested against the paragraph (g)(1) standards of
the Departments’ interim final grandfather regulations.
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Q5: How do the Departments’ interim final grandfather regulations affect wellness
programs sponsored by group health plans?
A5: Group health plans may continue to provide incentives for wellness by providing premium
discounts or additional benefits to reward healthy behaviors by participants or beneficiaries, by
rewarding high quality providers, and by incorporating evidence-based treatments into benefit
plans.
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However, penalties (such as cost-sharing surcharges) may implicate the paragraph (g)(1)
standards listed above in Q&A 1 and should be examined carefully. In addition, plans should
take steps to ensure compliance with applicable nondiscrimination rules (such as the HIPAA
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nondiscrimination rules for group health plans and group health insurance coverage with
respect to an individual based on a health status related factor) and any other applicable Federal
or State law.
DENTAL AND VISION BENEFITS
Q6: What if my dental (or vision) benefits are structured as excepted benefits under
HIPAA? Does that exemption except my dental (or vision) plan from the Affordable
Care Act’s market reforms?
A6: Yes. If benefits constitute excepted benefits under HIPAA, the requirements of the Affordable
Care Act’s market reforms do not apply. Under HIPAA, dental (and vision) benefits generally
constitute excepted benefits if they:
Are offered under a separate policy, certificate, or contract of insurance; or
Are not an integral part of the plan. For dental (or vision) benefits to be considered not an
integral part of the plan (whether insured or self-insured), participants must have a right
not to receive the coverage and, if they do elect to receive the coverage, must pay an
additional premium.
Accordingly, if a plan provides its dental (or vision) benefits pursuant to a separate election by a
participant and the plan charges even a nominal employee contribution towards the coverage,
the dental (or vision) benefits would constitute excepted benefits, and the market reform
provisions would not apply to that coverage.
RESCISSIONS
Q7: The Affordable Care Act (through Public Health Service Act section 2712) generally
provides that plans and issuers must not rescind coverage unless there is fraud or
an individual makes an intentional misrepresentation of material fact. A rescission
is defined as it is commonly understood under the law – a cancellation or
2
TheDepartmentsintendtotakeadditionalstepsinthefuturetopromotewellness.Specifically,theDepartments’interim
finalregulationsforpreventivecareinvitedcommentsrelatedtothedevelopmentofguidelinesandvalue‐basedinsurance
designsthatfosterhigher‐valuechoicesonthepartofconsumers,whileensuringaccesstocritical,evidence‐based
preventiveservices.Moreov
er,theAffordableCareAct(throughPublicHealthServiceActsection2705)willgiveplansand
issuersadditionalflexibilitytorewardparticipantsandbeneficiariesingrouphealthplansformeetingstandardsrelatedtoa
healthfactor.
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HIPAAistheHealthInsurancePortabilityandAccountabilityActof1996.
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discontinuance of coverage that has a retroactive effect, except to the extent
attributable to a failure to pay timely premiums towards coverage.
Is the exception to the statutory ban on rescission limited to fraudulent or
intentional misrepresentations about prior medical history? What about retroactive
terminations of coverage in the “normal course of business”?
A7: The statutory prohibition related to rescissions is not limited to rescissions based on fraudulent
or intentional misrepresentations about prior medical history. An example in the Departments’
interim final regulations on rescissions clarifies that some plan errors (such as mistakenly
covering a part-time employee and providing coverage upon which the employee relies for some
time) may be cancelled prospectively once identified, but not retroactively rescinded unless
there was some fraud or intentional misrepresentation by the employee.
On the other hand, some plans and issuers have commented that some employers’ human
resource departments may reconcile lists of eligible individuals with their plan or issuer via data
feed only once per month. If a plan covers only active employees (subject to the COBRA
continuation coverage provisions) and an employee pays no premiums for coverage after
termination of employment, the Departments do not consider the retroactive elimination of
coverage back to the date of termination of employment, due to delay in administrative record-
keeping, to be a rescission.
Similarly, if a plan does not cover ex-spouses (subject to the COBRA continuation coverage
provisions) and the plan is not notified of a divorce and the full COBRA premium is not paid by
the employee or ex-spouse for coverage, the Departments do not consider a plan’s termination
of coverage retroactive to the divorce to be a rescission of coverage. (Of course, in such
situations COBRA may require coverage to be offered for up to 36 months if the COBRA
applicable premium is paid by the qualified beneficiary.)
PREVENTIVE HEALTH SERVICES
Q8: Some of the recommendations and guidelines of the United States Preventive
Services Task Force (USPTF), the Advisory Committee on Immunization Practices
of the Centers for Disease Control and Prevention (Advisory Committee) and the
Health Resources and Services Administration (HRSA) do not definitively state the
scope, setting, or frequency of the items or services to be covered. What should
my plan do if an individual requests, for example, daily counseling for diet?
A8: The interim final regulations regarding preventive health services provide that if a
recommendation or guideline for a recommended preventive health service does not specify the
frequency, method, treatment, or setting for the provision of that service, the plan or issuer can
use reasonable medical management techniques (which generally limit or exclude benefits based
on medical necessity or medical appropriateness using prior authorization requirements,
concurrent review, or similar practices) to determine any coverage limitations under the plan.
Thus, to the extent not specified in a recommendation or guideline, a plan or issuer may rely on
the relevant evidence base and these established techniques to determine the frequency,
method, treatment, or setting for the provision of a recommended preventive health service.
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CLARIFICATION RELATING TO POLICY YEAR AND EFFECTIVE DATE OF THE AFFORDABLE
CARE ACT FOR INDIVIDUAL HEALTH INSURANCE POLICIES
Q9: Some States and issuers have interpreted the definition of a policy year in the
interim final regulation on dependent coverage of children to age 264 to mean that
if an issuer establishes a policy year for the insured under an individual policy on a
basis other than the effective date of coverage (such as a calendar year beginning
January 1, 2012), then the provisions of the Affordable Care Act do not apply to
those policies before the start of the policy year. Can compliance with the
Affordable Care Act requirements for policies in the individual market sold on or
after September 23, 2010 be effective on a date other than the date that coverage
begins?
A9: No. We understand that carriers in the health insurance individual market may designate a fixed
policy year, but continue to issue policies throughout the year. For example, a carrier may
designate a policy year of January 1 through December 31 for an individual policy under which
coverage begins on October 1.
However, the statute and regulations contemplate implementation of the Affordable Care Act
requirements at the beginning of the first new period of coverage that begins on or after
September 23, 2010, whether this new coverage period is a full or shortened period of
coverage. If a policy begins to cover an individual effective on a date that is on or after
September 23, 2010, the initial policy year for that individual, for purposes of determining the
effective date of the Affordable Care Act requirements, begins on the first date on which the
coverage is effective. This initial period of coverage might be an abbreviated policy year. For
example, it may run from October 1, 2010 through December 31, 2010, with a new calendar-
based policy year beginning on January 1, 2011 (assuming the individual renews the policy), or
from December 1, 2010 through June 30, 2011, with a new policy year beginning each July 1
(again, assuming the policy is renewed). It would be a “policy year” for purposes of the
Affordable Care Act effective date if it is a new period of coverage, regardless of when (or
whether) the first subsequent 12 month policy year begins.
If issuers, however, have relied in good faith on guidance or instructions from a state insurance
regulator indicating that the provisions of the Affordable Care Act are not applicable until the
beginning of the first full policy year of the individual coverage, then carriers will be afforded a
reasonable period of time after the issuance of this guidance to come into compliance with the
law. Nonetheless, subsequent to the issuance of this guidance, issuers may not rely in good
faith on any contrary guidance or instruction issued by a state insurance regulator.
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See 75 FR 27122, published May 13, 2010.
