Verify Character and Implications of Proposed Features and Products Alone & In Conjunction With Overall Benefit Design To Avoid Unexpected Exposures
As employer and other plan sponsors, insurers, and their service providers continue to struggle to understand and select the health plan options legally allowed when the next wave of the Patient Protection & Affordable Care Act (ACA) health care reforms take effect on January 1, 2014, recent guidance from the Departments of Health & Human Services, Internal Revenue Service and Department of Labor (Tri-Agencies) warn employers and others considering using “hospital indemnity,” “fixed indemnity insurance” or other arrangements characterized as qualifying as “exempted benefits” for purposes of ACA and the portability requirements of the Health Insurance Portability & Accountability Act of 1996 (HIPAA). See FAQS About Affordable Care Act Implementation XI (Q7) (hereafter “FAQ XI”).
The group health mandates of the HIPAA portability rules and ACA generally apply to group health plans covering two or more individuals that does not otherwise qualify as an exempt plan under the applicable regulations.
In FAQ XI, the Tri-Agencies report, “The Departments have noticed a significant increase in the number of health insurance policies labeled as fixed indemnity coverage. Noting that “[v]arious situations have come to the attention of the Departments where a health insurance policy is advertised as fixed indemnity coverage” that do not “Meet the conditions for excepted benefits,” FAQ XI warns, “The Departments plan to work with the States to ensure that health insurance issuers comply with relevant requirements for different types of insurance policies and provide consumers the protections of the Affordable Care Act.
The warning of the overly aggressive characterization of certain arrangements as fixed indemnity coverage exempt from HIPAA and ACA mandates comes with acknowledgement that legitimate fixed indemnity coverage under a group health plan that actually meets the conditions outlined in 26 CFR 54.9831-1(c)(4), 29 CFR 732(c)(4), 45 CFR 146.145(c)(4) are exempt from the obligation to comply with the ACA and HIPAA portability mandates of title XXVI of the PHS Act, part 7 of ERISA and chapter 100 of the Code as excepted benefits under PHS Act section 2791(c)(3)(B), ERISA section 733(c)(4), and Code section 9832(c)(3)(B).
Under Treasury Regulation § 54.9831–1(c)(4), however, “coverage for only a specified disease or illness (for example, cancer-only policies) or hospital indemnity or other fixed indemnity insurance” only qualifies for exemption from ACA and the HIPAA Portability mandates if it meets each of following conditions:
- To be hospital indemnity or other fixed indemnity insurance, the insurance must pay a fixed dollar amount per day (or per other period) of hospitalization or illness (for example, $100/day) regardless of the amount of expenses incurred
- The benefits are provided under a separate policy, certificate, or contract of insurance;
- There is no coordination between the provision of the benefits and an exclusion of benefits under any group health plan maintained by the same plan sponsor; and
- The benefits are paid with respect to an event without regard to whether benefits are provided with respect to the event under any group health plan maintained by the same plan sponsor.
FAQ XI alerts insures, plan fiduciaries and plan sponsors that the Tri-Agencies are aware that certain insurers are marketing group insurance policies characterized as exempt “fixed indemnity insurance” which do not meet these requirements.
The primary problem discussed by the regulators at this point appears to relate to the benefits offered under these arrangements.
In FAQ XI , the Tri-Agencies state: “Various situations have come to the attention of the Departments where a health insurance policy is advertised as fixed indemnity coverage, but then covers doctors’ visits at $50 per visit, hospitalization at $100 per day, various surgical procedures at different dollar rates per procedure, and/or prescription drugs at $15 per prescription. In such circumstances, for doctors’ visits, surgery, and prescription drugs, payment is made not on a per-period basis, but instead is based on the type of procedure or item, such as the surgery or doctor visit actually performed or the prescribed drug, and the amount of payment varies widely based on the type of surgery or the cost of the drug. Because office visits and surgery are not paid based on “a fixed dollar amount per day (or per other period),” a policy such as this is not hospital indemnity or other fixed indemnity insurance, and is therefore not excepted benefits. When a policy pays on a per-service basis as opposed to on a per-period basis, it is in practice a form of health coverage instead of an income replacement policy. Accordingly, it does not meet the conditions for excepted benefits.”
These warning reaffirm guidance already contained in Treasury Regulation § 54.9831–1(c)(4), which provides: Example. (i) Facts. An employer sponsors a group health plan that provides coverage through an insurance policy. The policy provides benefits only for hospital stays at a fixed percentage of hospital expenses up to a maximum of $100 a day. (ii) Conclusion. In this Example, even though the benefits under the policy satisfy the conditions in paragraph (c)(4)(ii) of this section, because the policy pays a percentage of expenses incurred rather than a fixed dollar amount, the benefits under the policy are not excepted benefits under this paragraph (c)(4). This is the result even if, in practice, the policy pays the maximum of $100 for every day of hospitalization.”
As the Tri-Agencies have expressed awareness and concern that certain insurers may be advertising that certain health insurance policies qualify as exempted fixed indemnity coverage which offers benefits structured in a way that the Tri-Agencies do not view as fulfilling the requirements for exemption, insurers, health plan sponsors and fiduciaries, brokers and others considering or using insurance policies or health plan designs that rely upon assumptions that an arrangement is exempt from HIPAA and ACA as “fixed indemnity coverage” or other wise exempt from these rules are urged to seek assistance of qualified legal counsel experienced with characterization and use of these arrangements in connection with health plan designs to verify the accuracy of the arrangements characterization and implications when used in connection with the intended plan design.
Mistaken characterization of plans as exempt which are not create significant potential exposures for plan sponsors and fiduciaries, as well as the insurers, broker and consultants that recommend or participate in their delivery. For instance, an incorrect assumption that an arrangement qualifies as an exempted fixed indemnity product creates a significant likelihood that the employer of other plan and its sponsors and fiduciaries could incur liability under the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code and/or the Public Health Services Act for failing to comply with mandates assumed inapplicable based on faulty assumptions. Meanwhile insurers, brokers and other regulated in the insurance industry also could face exposures not only for potential compliance deficiency but also for misrepresentation of the nature and character of the products or other business practices regulated by applicable state insurance regulators. Accountants and others subject to professional ethics requirements imposed under the Code such as Circular 230 also could incur exposure under those rules as many of these rules involve the provision of tax advice potentially subject to these requirements.
Because the character of these and other arrangements often depends not only on the label applied, but also on both the structure of the product and the manner in which it is used, deployed and administered in conjunction with other elements of the health and cafeteria plans offered by an employer, this analysis should include both a detailed review of the particular product itself and a holistic analysis of the manner in which it will be used on the overall health and other benefit design contemplated. Therefore,
When reviewing these and other proposed “solutions,” health plan sponsors and fiduciaries, insurers, administrators, brokers and others should ensure that arrangements and their proposed products in form and in structure in fact meet all requirements for characterization and use in the way proposed and that the users fully understand all compliance and liability obligations resulting from the proposed arrangements both in its free-standing form, and as implemented along with other health benefits, cafeteria plan, and other related arrangements.
For Help or More Information
If you need help with preparing these or other ACA compliance or with reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters including extensive experience on HIPAA and other privacy and data security issues.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Extensively published and a popular speaker on health and other employee benefit and insurance matters, Ms. Stamer works extensively with \health plans, employers, insurance and financial services, health care, technology and other clients on ACA and other health benefit, insurance, employee benefit and workforce matters.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
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- Deadline To Send ACA Summary of Benefits & Coverage Adds Pressure To Finalize 2014 Plan Designs As Agencies Add MEC & MV Disclosures To SBC
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- Justice Department Charges Employer, Pension Plan With Violating USERRA Reemployment Rights
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For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.
©2013 Cynthia Marcotte Stamer, P.C. Nonexclusive license to republish granted to Solutions Law Press, Inc. All other rights reserved