Note: this post has been edited: please see https://pippaabston.wordpress.com/2012/11/21/new-rules-on-pre-existing-conditions-take-two/ for the edited version. Very quick, unpolished post today, because I have to leave for rounds in a few minutes and just found out about this late last night. Will be with family on Thanksgiving and no time to get to it, but you might want to send in your comment to Health and Human Services, and it looks like there is a 30 day deadline.
HHS has issued their proposed rule for how the changes on pre-existing conditions will take place in 2014. Please read it, at least the beginning, because I need help figuring it out. A couple of terms: “grandfathered” means a plan that was around before 2010 so doesn’t have to meet many of the new rules in the ACA. It is now very hard to get ungrandfathered—an employer can switch insurance companies completely and as long as the new policy is similar to the old one, it is not new—it is still grandfathered. I’ll call these plans “old.”
A non-grandfathered plan is a “new” plan that has to meet the ACA requirements all around, like preventive care without co-pays.
So the original ACA said that in 2014, insurers had to accept people with pre-existing conditions without discrimination, except for “old” individual plans. Here is then language that means, to me, that “old” group plans have to play by those rules also, in Section 1251: “The provisions of section 2704 (related to pre-existing condition exclusions) of the Public Health Service Act (as added by this title) shall apply to grandfathered health plans that are group plans for plan years beginning with the first plan year to which such provisions otherwise apply.” Clear as mud, but section 2704 is the part that says insurers can’t exclude people. I don’t think I’m the only person who interpreted it this way—here is BCBS of Al describing the incoming changes, and they list the pre-existing condition rules in both columns (page 2). Of course, the info in the link may change if they apply the new HHS wording.
The new proposed rule, just issued, appears to completely ignore the ACA here. It says: “Proposed §147.104 would require issuers offering non-grandfathered health insurance
coverage to accept every individual or employer who applies for coverage in the individual or
group market, as applicable, subject to certain exceptions (for example, limits on network
capacity).” In translation, only “new” insurance plans have to play by the pre-existing condition rules.
That is HUGE. Why? Because if you work or get hired by an employer who only offers grandfathered plans (like my boss), you will not get the new coverage of pre-existing conditions. You might get the insurance, but it might not cover, say, your asthma, if you haven’t had continuous large employer coverage. And that could be the case indefinitely, because HHS keeps adjusting the criteria for becoming “new” so that it is very easy to stay old, forever. They call it “keeping the plan you have.”
I have re-read the requirements for insurers to participate in the coming Exchanges, and I can’t find any requirement that the plans offered must be “new”. So people with pre-existing conditions may or may not be able to find a plan on the Exchange or outside of it, in the individual market. If they can’t, they would be stuck with the high cost high risk pool run by the states.
There are already enough loopholes built into the ACA without HHS blatantly undoing it. This is Obama’s appointee doing it, so if you don’t like it, better speak up now. If I have misinterpreted these proposed rules or the ACA, please let me know—it is entirely possible! The thing is a mess and hard to wrangle with. Please help me out here—what do you think?