Affordable Care Act Grandfathered Plan Rules Loosened To Allow Insured Plans Making Some Insurance Changes To Qualify

November 17, 2010

A change to regulations implementing the “grandfathered plan” rules of the Patient Protection and Affordable Care Act (Affordable Care Act) announced yesterday has opened up the possibility that some insured group health plans changing insurers may continue to qualify as “grandfathered health plans” exempted from certain health care reform mandates.  Because policy or insurer changes can create challenges in meeting other conditions required to get grandfathered plan status, however, sponsors and administrators of insured group health plans should prepare to timely comply with all applicable Affordable Care Act mandates unless they have verified their ability to prove that their program meets all requirements to qualify for grandfathered plan status will need to confirm that with or without the insurance-related change.

The Affordable Care Act generally requires that insured and self-insured group health plans and group and individual health insurance policies comply with many new federal mandates beginning with the first day of the plan or contract year that begins after September 22, 2010.  If a group health plan or health insurance policy existed on March 23, 2010 and otherwise qualifies as a “grandfathered health plan,” however, it may qualify as exempted or for a delayed effective date from some but not these new mandates. By shaping the mandates applicable to group health plans, the grandfather rules will impact both the cost and the design of affected group health plans. 

Original Rule About Insurance Changes

Interim Final Regulations issued by jointly by the Departments of Labor, Health & Human Services and Treasury (Agencies) last June established a series of detailed requirements that a group health plan or health insurance policy must meet to qualify as a grandfathered health plan or policy beyond merely existing on March 23, 2010.  As part of these requirements, the Interim Final Regulations identified a number of changes and other events that would disqualify a group health plan or insurance policy as a grandfathered plan. 

In the case of insured group health plans, changing insurance policies or insurers was not an allowable change for a plan desiring to qualify as grandfathered.  As originally interpreted by the Agencies in the Interim Final Regulations, self-insured group health plans were permitted to change third-party administrators without forfeiting grandfathered health plan status as long as the change did not otherwise change the plan terms or design in a way that would disqualify the plan for grandfathered status.  In contrast, however, the Agencies original interpretation stated that entering into a new policy, certificate, or contract of insurance for an insured non-collectively bargained group health plan in and of itself would disqualify the group health plan as a grandfathered health plan.  The modified rule published on November 16, 2010 (Amended Rule) eliminates this distinction in response to public comments received since its publication of the original guidance.

Amended Rule About Insurance Changes

Under the Amended Rule, the same standards now will determine the effect of a change in vendor or contract on the grandfathered health plan status of a group health plan whether the plan is insured or self-insured.  Accordingly, with respect to changes in group health coverage contracts, the Interim Regulations, as modified by the Amended Rule, now provides where insured or self-insured, a group health plan (including a group health plan that was self-insured on March 23, 2010) or its sponsor that enters into a enters into a new policy, certificate, or contract of insurance after March 23, 2010 that is effective before November 15, 2010 generally will cease to be a grandfathered health plan unless the plan meets certain specified conditions.  The group health plan must provide to the new health insurance issuer (and the new health insurance issuer must require) documentation of plan terms (including benefits, cost sharing, employer contributions, and annual limits) under the prior health coverage sufficient to demonstrate that except for the contract change, the group health plan otherwise has not been modified or experienced any other event that would otherwise result in its disqualification for grandfathered health plan status under the Interim Final Regulations as modified by the Amended Rule.

As currently drafted, the relief provided in the Amended Rule does not expressly apply to a change in insurer or insurance contract made by a non-collectively bargained group health plan after November 14, 2010 regardless of whether the change in made before deadline for the group health plan to begin complying with the Affordable Care Act (i.e., the first day of the first plan year beginning after March 22, 2010).  Additionally, the relief set forth in the Amended Rule does not apply to individual health insurance policies.  Where insured coverage is provided not through a group health plan but instead in the individual market, a change in issuer still remains a change in the health insurance coverage after March 22, 2010 that disqualifies the new individual policy, certificate, or contract of insurance for status as a grandfathered health plan for purposes of the Affordable Care Act.

For a more detailed discussion of the grandfathered plan rules and the changes made this week, see here.

For More Information Or Assistance

If you need help reviewing or responding to the grandfather regulations or other health benefit regulations or other related matters please contact Cynthia Marcotte Stamer here or (469) 767-8872. 

About Ms. Stamer

Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits, Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, management attorney and consultant Cynthia Marcotte Stamer has more than 23 years experience advising and representing employers, health and other employee benefit plans, their sponsors, fiduciaries and plan administrators, consultants, vendors, outsourcers, insurers, governments and others about employment, employee benefit, compensation, and a wide range of other performance, legal and operational risk management practices and concerns.  As a part of this work, Ms. Stamer has worked extensively with clients on health care reforms and regulations under the Affordable Care Act and other federal and state laws.  A prolific author and popular speaker, Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on GINA and other employment and employee benefit risk management practices and concerns for the ABA, World At Work, SHRM, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations.  Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see here or contact Ms. Stamer.

Other Resources & Developments

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available for review here. If you or someone else you know would like to receive future updates and notices about other upcoming Solutions Law Press events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here. For important information concerning this communication click here.

©2010 Cynthia Marcotte Stamer PC.  Reprint Permission Granted To Solutions Law Press. All other rights reserved.


Democrats Introduce Health Care Reform Legislation, Work To Fast Track Enactment

June 11, 2009

Coalition For Responsible Health Care Reform Founded To Help Concerned Americans Respond

Americans concerned about plans of President Obama and Congressional Democrats to enact comprehensive health care reform this year must speak up now.

Senator Edward M. Kennedy yesterday (June 9, 2009) circulated a 625 page proposal to radically reform the U.S. health care system.  The latest draft of the “Affordable Health Choices Act” (the “Act”) details the comprehensive health care reforms that President Obama and Democrats in Congress propose to enact before year end. 

President Obama and key Congressional Democrats are moving quickly to enact their vision for “comprehensive health reform” this year.   The Act circulated yesterday by Senator Kennedy would radically change the U.S. health care system in enacted as currently proposed. 

Consistent with announced plans by President Obama and key Congressional Democrats to enact “comprehensive health care reform” this year, Democratic leaders in Congress are rushing to enact this legislation well before year end.  In furtherance of plans to fast track enactment of the Act, the Senate Committee on Health, Education, Labor and Pensions (HELP) chaired by Senator Kennedy will hold a hearing on the Act this week in anticipation of meetings to mark up of the Act on Tuesday, June 16 at 2:30 p.m. in Russell 325. 

The Act, as proposed, would make sweeping changes to the U.S. health care system and radically expand the involvement of government in the delivery and financing of health care.  Among other things, the Act as proposed would:

  • Establish government provided “Gateway” health care coverage programs to provide coverage for Americans not insured under qualifying employer or other privately run “qualified health plan” to be financed in part through surcharges on private health plans and health insurers and other taxes and assessments and in part through premiums on enrolled individuals
  • Require that Americans participating in the Gateway health care coverage programs be offered the opportunity to enroll in at least one “public health insurance option”  
  • Require Americans to chose either to enroll in a government run Gateway health program or enroll in qualifying coverage under a privately run qualified health plan
  • Impose sweeping new mandates on employer and union-sponsored group health plans and insurers
  • Impose newly created taxes on individuals that fail to maintain enrollment in health coverage under either a Gateway health program or a private qualified health plan
  • Tax and/or eliminate the deductibility of health coverage premiums and certain other amounts paid by certain employers and employees
  • Impose new federal mandates for health care providers, health plans and health insurers relating to the quality standards, the use of health care technology and other matters
  • Grant federal regulators sweeping authority to define what qualifies as appropriate health care and health care coverage, the health care services that qualify for health care coverage and the payment and delivery of health care services.

You can review a copy of currently proposed provisions of the 615 page Act here

Individuals concerned about these and other proposed health care reforms must act immediately to become familiar and share their input on the proposals.

Assistance Monitoring & Responding To Health Care Reform Proposals

If you or someone else you know would like to receive updates about health care reform proposals and other related legislative, regulatory, and enforcement developments, please:

  • Register for this resource at the link above;
  • Join the Coalition for Responsible Health Policy group at linkedin.com to share information and input;
  • Share your input by communicating with key members of Congress on committees responsible for this legislation and your elected officials directly and by actively participating in and contributing to other like-minded groups; and
  • Be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here

You can register to receive future updates on legislative and regulatory health care reform proposals and other related information by registering for this resource or access other publications by Ms. Stamer and access other helpful resources here.

Long-time health policy advocate and advisor Cynthia Marcotte Stamer has more than 22 years of experience advising and assisting clients to evaluate and respond to health care reform proposals and other proposed or adopted changes in federal or state health care, employee benefit, employment, tax and other federal and state laws.  Former Chair of the American Bar Association’s Managed Care & Insurance Section, Ms. Stamer is highly regarded legal advisor, policy advocate, author and speaker recognized both nationally and internationally for her more than 20 years of work assisting U.S. public and private employers, health care providers, health insurers, and a broad range of other clients to respond to these and other health care, employee benefit and workforce public policy, regulatory and compliance and risk management concerns within the U.S. as well as internationally.  Her work includes extensive involvement providing input and assistance about health care, workforce, pensions and social security and other reforms domestically and internationally.  In addition to her continuous involvement in U.S. health care, pensions and savings, and workforce policy matters, Ms. Stamer has served as an advisor on these matters internationally.  As part of this work, she served as a lead advisor to the Government of Bolivia on its social security reform as well as has provided input on ethics, medical tourism, workforce and other reforms internationally.

Ms. Stamer is a widely published author and popular speaker on health plan and other human resources, employee benefits and internal controls issues.   Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association.  Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

Ms. Stamer also serves in a number of professional leadership roles including the leadership council of the ABA Joint Committee on Employee Benefits, Vice Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group.

If your organization needs assistance with monitoring, assessing, or responding to these or other health care, employee benefit or human resources reforms,  please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402.  For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here

Additional Resources & Information

We hope that this information is useful to you. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here.  

©2009 Cynthia Marcotte Stamer. All rights reserved.