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On July 17, 2020, in a 2-1 decision, the  U.S. Court of Appeals for the D.C. Circuit upheld a Trump Administration rule that expands the scope of short-term limited duration insurance (STLDI) plans, affirming the lower court’s opinion that STLDI plans do not violate the Affordable Care Act. Ass’n for Cmty. Affiliated Plans v. U.S. Dep’t of Treasury , D.C. Cir. App., No. 19-05212 (July 17, 2020).

The rule’s genesis can be traced to an Executive Order issued in October 2017, which aimed to expand the availability of STLDI plans, seen by the Administration as more “appealing and affordable” than plans mandated by the ACA. The order tasked the Departments of Treasury, Labor, and Health and Human Services with expanding the duration of STLDI plans from three months to twelve. The changes also provide for renewals of those plans, which can amount to continuous coverage for up to three years.Continue Reading Appeals Court Upholds Trump Administration’s Short-term, Limited Duration Insurance Policy Rule

Potentially overlooked between the enactment of the Families First Coronavirus Response Act (the FFCRA) on March 18 and the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) on March 27, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument via teleconference on March 20 in Ass’n for Cmty. Affiliated Plans v. U.S. Dep’t of Treasury, No. 19-05212 (D.C. Cir. July 30, 2019). At issue in that case is the fate of a Trump Administration rulemaking expanding the scope of non-ACA compliant short-term limited duration insurance (STLDI) plans. Already controversial—with some arguing that STLDI plans increase access to health care, while others decry them as misleading consumers and destabilizing the individual insurance market—STLDI plans are of particular import given the COVID-19 pandemic.

As millions face unemployment, lose access to employer-sponsored health insurance coverage, and qualify to seek coverage via a special enrollment period, others may look to STLDI policies to obtain at least some coverage in the wake of COVID-19. But, as with ACA requirements such as essential health benefits and community rating, STLDI plans are not subject to the recently enacted zero-dollar cost-sharing and other coverage requirements for COVID-19 diagnostic testing.Continue Reading Appeals Court Hears Argument on Short-term, Limited Duration Insurance Plan Rule; STLDI Plans are not Required to Provide $0 Cost-share of COVID-19 Diagnostic Testing

On February 13, the Departments of Health and Human Services (“HHS”), Labor (“DOL”) and Treasury (collectively, the “Departments”) issued Part XXIII of their FAQs about Affordable Care Act implementation. This latest FAQ provides additional guidance regarding “excepted benefits,” i.e., benefits that are exempt from the portability rules under HIPAA as well as various requirements under ERISA (including MHPAEA) and the ACA, including the ACA’s market reforms (such as the prohibition on lifetime and annual limits, etc.). Specifically, the FAQ focuses on a subcategory of excepted benefits known as “supplemental excepted benefits,” which generally are benefits provided under a separate policy, certificate or contract of insurance which are designed to “fill gaps” in primary coverage.

The FAQ notes that, in determining whether insurance coverage sold as a supplement to group health coverage can be considered “similar supplemental coverage” (and hence an excepted benefit), they will continue to apply four criteria previously set forth by the Departments in subregulatory guidance issued in 2007 and 2008:

  1. The policy, certificate, or contract of insurance must be issued by an entity that does not provide the primary coverage under the plan;
  2. The supplemental policy, certificate, or contract of insurance must be specifically designed to fill gaps in primary coverage, such as coinsurance or deductibles;
  3. The cost of the supplemental coverage may not exceed 15 percent of the cost of the primary coverage; and
  4. Supplemental coverage sold in the group insurance market must not differentiate among individuals in eligibility, benefit or premiums based upon any health factor of the individual (or any dependents of the individual)

Continue Reading DOL, HHS & Treasury Issue Additional Guidance Regarding Excepted Benefits

On February 10, 2014, the Centers for Medicare & Medicaid Services (CMS) published a notice seeking public comment on its revision to data elements being collected for coverage offered on and off the Exchange. In particular, CMS seeks comment on revisions to data collected by the Exchange to ensure that Qualified Health Plans meet certain…

President Obama announced on November 14 that the Administration will allow health insurers to continue certain coverage in the individual and small group market which would have not otherwise met the market reform requirements of the Affordable Care Act (ACA). This change raises significant questions and operational problems for issuers, providers, employer sponsors of health plans, and other organizations operating in the health care industry. In conjunction with the President’s announcement, the Centers for Medicare & Medicaid Services of the Department of Health and Human Services (CMS) has issued a letter to state insurance commissioners (CMS Letter) detailing the Administration’s new “transitional policy” in regard to this issue. The CMS Letter provides some guidance regarding health insurance policies that now may be continued, and specifies the necessary conditions under which these policies may be continued. However, there remains much uncertainty as to whether issuers will be able to continue to offer these policies, as well as the overall impact on the insurance market.
Continue Reading The Obama Administration’s ‘Fix’ for Insurance Cancellations: Five Things Worth Taking into Account

On November 14, 2013, under increasing political pressure, President Obama announced that the Administration temporarily will allow insurers to renew some individual and small employer policies for 2014—even if these plans do not meet certain Affordable Care Act requirements, such as Essential Health Benefits. The new rules permit insurers, until October 1, 2014, to renew …