Section 2711 of the Public Health Service Act (the “Act”), as added by the Affordable Care Act (“ACA”), generally prohibits group health plans and health insurance issuers offering group insurance coverage from imposing lifetime or annual limits on the dollar value of essential health benefits offered under the plan or coverage.
On June 28, 2010, the Departments of Health and Human Services, Labor, and Treasury (the “Departments”) published a new Interim Final Rule addressing several provisions of the Affordable Care Act, including requirements related to lifetime and annual limits.
For plan years beginning after September 23, 2010, group health plans are prohibited from imposing lifetime limits on the dollar value of essential health benefits offered under the plan or coverage.
For plan years beginning on or after January 1, 2014, group health plans and health insurance issuers are prohibited from imposing annual limits on the dollar value of essential health benefits.
Under the ACA, essential health benefits are defined to include the following general categories: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services (including behavioral health treatment), prescription drugs, rehabilitative and habilitative services and devices, laboratory services, preventive and wellness services, chronic disease management, and pediatric services (including oral and vision care).
These general categories are not a complete definition, and the Departments are required to issue regulations specifically defining essential health benefits for purposes the ACA. Until such time as those regulations are issued, the Departments will take into account good faith efforts to comply with a reasonable interpretation of essential health benefits for purposes of applying the lifetime and annual limits prohibitions. See the Essential Health Benefits section below for more information.
In order to mitigate the potential for drastic increases in plan costs, the interim final regulations adopt a three year phased approach for allowance of restricted annual limits. All annual limits on the dollar value of essential health benefits must be eliminated for plan years beginning on or after January 1, 2014.
Under this phased approach, annual limits on the dollar value of benefits that are essential health benefits may not be less than the following amounts:
Restricted annual limits are applied on a per person basis, and thus any overall annual dollar limit applicable to families cannot operate to deny any individual participant the minimum annual benefits for the plan year.
A group health plan must offer any individual who has lost coverage solely because he or she reached a lifetime limit on benefits a special enrollment opportunity of at least 30 days in which to enroll in the plan, as long as that individual is otherwise still eligible for coverage. This enrollment period is treated as a HIPAA special enrollment period, which permits the employee as well as the individual who previously exceeded the limit to choose from among any of the benefit options offered under the plan.
The enrollment opportunity must be provided no later than the first day of the first plan year beginning on or after September 23, 2010. Therefore, many plans can use the existing annual or open enrollment periods to satisfy the enrollment opportunity requirement, as long as the enrollment period is a minimum of 30 days in length. Once the individual is enrolled, coverage must begin no later than the first day of the first plan year beginning on or after September 23, 2010. This is true even if the request for special enrollment is made after the first day of the plan year, as long as the request is made during the required special enrollment period.
Plans and issuers must provide one-time written notice of this special enrollment right to any individual who has lost coverage because he or she reached a lifetime limit on benefits. The notice must state that the lifetime limit no longer applies and that the individual (if still otherwise eligible) has a 30 day special enrollment period by which to enroll in any benefit option under the plan available to similarly-situated employees. The notice may be provided to an employee on behalf of the employee’s dependent. In addition, the notice may be included with other enrollment materials that a plan distributes to employees, provided the statement is prominent.
Although the regulations do not specify a means of delivery for this notice, presumably the plan could follow ERISA safe harbor distribution methods.
Please Note: This special enrollment and notice requirement is a one-time event and does not need to be repeated in subsequent plan years; however, plans that issued this notice should maintain a copy of it with their plan records.
A class of group health plans and health insurance coverage, generally known as “limited benefit” plans or “mini med” plans, often has annual limits well below the restricted annual limits set out in the interim final regulations.
These group plans and health insurance coverage often offer lower-cost coverage to part-time workers, seasonal workers, and volunteers who otherwise may not be able to afford coverage at all.
In order to ensure that individuals with certain coverage, including coverage under limited benefit or mini-med plans, would not be denied access to needed services or experience more than a minimal impact on premiums, the interim final regulations contemplated a waiver process for plan or policy years beginning prior to January 1, 2014 for cases in which compliance with the restricted annual limit provisions of the interim final regulations “would result in a significant decrease in access to benefits” or “would significantly increase premiums.”
This waiver process does not impact any State law requirement addressing annual benefit limits in group health plans, or group and individual health insurance coverage.
Click Here for more information on waiver process
Essential health benefits (EHB) include at least the following general categories and the items and services covered within these categories:
A plan or issuer must apply the definition of essential health benefits consistently. For example, a plan could not both apply a lifetime limit to a particular benefit—thus taking the position that it was not an essential health benefit—and at the same time treat that particular benefit as an essential health benefit for purposes of applying the restricted annual limit.
The interim final regulations do not prevent a plan or issuer from excluding all benefits for a condition. An exclusion of all benefits for a condition is not considered to be an annual or lifetime dollar limit.
Each State is required to determine an “EHB-benchmark plan” in accordance with criteria specified in the rules and which are generally a function the largest of various types of plans operating within the state. There are default rules for States that fail to select a benchmark plans.
Details regarding each State’s benchmark plan can be found here.
Issuers of plans for small employers that will be available through the Exchanges must provide coverage for EHB. Large insured plans and self-insured plans are not required to provide EHB but, of course, most will provide some benefits that are EHB and to that extent they will be subject to the limitations on lifetime and annual limits applicable to EHB. A self-insured plan, large group plan and grandfathered group health plan will be considered to have used a permissible definition of EHB if it is one authorized by the Secretary of HHS, including any available benchmark options. Furthermore, the Departments intend to work with those plans that make a good faith effort to apply an authorized definition of EHB to ensure there are no annual or lifetime dollar limits on EHB.
In addition, EHB are used to measure whether a self-funded health plan provides minimum value. The final rule provides that a self-funded plan may take into account all benefits provided by the plan that are in any of the EHB benchmark plans.
The interim final regulations provide that the following modifications to annual limits provided under a group plan or health insurance coverage implemented after March 23, 2010 will impact grandfathered plan status under the ACA:
The restriction on annual limits applies differently to certain account-based plans, especially where other rules apply to limit the benefits available.
The annual limit rules do not apply to health flexible spending accounts (health FSAs).
Other market reform provisions will apply to health FSAs unless they are considered excepted benefits. A health FSA will be considered an excepted benefit if:
Health Reimbursement Arrangements (HRAs) are another type of account-based health plan and typically consist of a promise by an employer to reimburse qualified medical expenses incurred and paid by a participant up to a certain amount during the plan year. HRAs can be designed so that unused amounts are available to reimburse a participant’s qualified medical expenses in future years, or can be designed such that any unused amounts are forfeited. HRAs must be funded solely with employer contributions.
An HRA is not considered a health plan for purposes of the ACA if it only provides excepted benefits (for example limited scope dental and vision benefits). If an HRA is available to reimburse medical expenses that are not excepted benefits, it is considered a health plan for purposes of the ACA’s market reform rules. As a result, it would need to comply with the rules prohibiting annual limits on essential health benefits as well as those requiring payment for preventive care.
However, when HRA coverage is “integrated” with coverage under a primary group health plan that complies with the ACA’s annual dollar limit requirement, the fact that the HRA features provide an annual reimbursement limit on essential health benefits will not cause it to be in violation of the ACA.
There are two methods by which an HRA may be considered integrated. The first is called the “Minimum Value Not Required Method”. Under this method, an HRA is integrated with an employer’s group health plan for purposes of the annual dollar limit prohibition and the preventive services requirements if:
The second method is called the “Minimum Value Required Method”. It applies to HRAs whose reimbursements are not limited as described under item (4) above. These HRAs will be considered integrated if:
An HRA is not considered “integrated” if it is available to employees who are not covered by a primary group health plan. This includes employees who are eligible for the employer’s primary coverage but elect not to take it. As noted above, however, an employer’s HRA can be integrated with the health coverage offered by another employer. However, see comments under the heading The Effect of Arrangements that Reduce Cost-Sharing on Minimum Value and Affordability of Employer-Sponsored Plans for the treatment of HRA contributions for purposes of determining an employee’s required contribution as it relates to the individual mandate.
In addition, an HRA that is used to purchase coverage on the individual market is not considered integrated.
Unused amounts that were credited to an HRA while the HRA was integrated with other group health plan coverage may be used to reimburse medical expenses in accordance with the terms of the HRA after an employee ceases to be covered by other integrated group health plan coverage without causing the HRA to fail to comply with the market reforms.
Example: Employee X is covered under his employer’s group health plan. The employer also sponsors an HRA for its covered employees. The employer credits $500 per year to the HRA account of each employee. X becomes ineligible for his employer’s group health plan due to a change in job classification. However, at the time his coverage ends, he still has $300 available in his HRA. The HRA may permit the X to use the $300 for medical expenses incurred after termination of his health plan coverage.
An HRA integrated with a group health plan that does not provide minimum value is deemed to impose an annual limit in violation of the annual dollar limit prohibition if the group health plan with which the HRA is integrated does not cover a category of essential health benefits and the HRA is available to cover that category of essential health benefits but limits the coverage to the HRA’s maximum benefit.
Example: Employer M sponsors a self-insured group health plan which does not provide minimum value. The group health plan does not cover preventive care. The employer also sponsors an HRA for its covered employees. The employer credits $500 per year to the HRA account of each employee. The employees may use the HRA to pay for medical expenses including preventive care up to the available balance in their account. The HRA is in violation of the ACA’s annual dollar limit prohibition.
However, under the integration method available for plans that provide minimum value, if a group health plan provides minimum value, an HRA integrated with that group health plan will not be treated as imposing an annual limit in violation of the annual dollar limit prohibition, even if that group health plan does not cover a category of essential health benefits and the HRA is available to cover that category of essential health benefits and limits the coverage to the HRA’s maximum benefit.
Example: Employer M sponsors a self-insured group health plan that provides minimum value. However, the group health plan does not cover preventive care. The employer also sponsors an HRA for its covered employees. The employer credits $500 per year to the HRA account of each employee. The employees may use the HRA to pay for medical expenses including preventive care up to the available balance in their account. The HRA is not in violation of the ACA’s annual dollar limit prohibition.
In previous guidance unrelated to the ACA, the IRS has stated that an HRA may be considered an FSA under certain specified circumstances. However, the IRS has declined to extend that ruling to HRAs for purposes of whether the annual limit rules apply, saying only that the matter is under consideration.
If the HRA terms in effect on January 1, 2013 did not prescribe a set amount or amounts to be credited during 2013 or the timing for crediting such amounts, then the amounts credited may not exceed those credited for 2012 and may not be credited at a faster rate than the rate that applied during 2012.
Retiree Plans: HRAs providing benefits solely to retirees are exempt from the rules relating to annual and lifetime limits, because retiree-only plans are exempt from the ACA.
Transition Relief: Whether or not an HRA is integrated with other group health plan coverage, unused amounts credited before January 1, 2014 (consisting of amounts credited before January 1, 2013 and amounts that are credited in 2013 under the terms of an HRA as in effect on January 1, 2013) may be used after December 31, 2013 to reimburse medical expenses in accordance with those terms without causing the HRA to fail to comply with PHS Act section 2711. If the HRA terms in effect on January 1, 2013 did not prescribe a set amount or amounts to be credited during 2013 or the timing for crediting such amounts, then the amounts credited may not exceed those credited for 2012 and may not be credited at a faster rate than the rate that applied during 2012.
Please note that cost-sharing limits only apply to essential health benefits (EHB) and do not include premiums, balance billing amounts for non-network providers, or spending for non-covered services such as cosmetic surgery. In the case of a plan using a network of providers, cost-sharing for benefits provided outside of the network will not count towards the annual limitation on cost-sharing.
For plan years beginning in 2014, the out-of-pocket maximum for non-grandfathered group health plans for self-only and family coverage cannot exceed the then applicable out-of-pocket maximums for such coverage under a high deductible health plan (2014 limits are $6,350 for single coverage and $12,700 for family). For plan years beginning in 2015 and after, the maximum out-of-pocket amount for self-only coverage will be indexed by a “premium adjustment percentage” established by HHS; the maximum out-of-pocket for family coverage will be twice the maximum for self-only coverage.
Plans are permitted to divide the limit across multiple categories of benefits if the aggregate total of cost-sharing limits does not exceed the permissible limit. For example, if the out-of-pocket maximum (OOP) for single coverage is $6,350, a plan could have a benefit design that imposed an OOP of $1,000 for prescription drug coverage and $5,350 for all other medical services.
If a plan includes a network of providers, the plan may, but is not required to, count out-of-pocket spending for out-of-network items and services towards the plan’s annual out-of-pocket maximum.
Transition Relief for First Year of Applicability: Some employers use different vendors to administer different benefits. For example, one vendor may administer the employer’s medical benefits and another may administer its pharmacy benefits. The law requires, however, that the OOP costs of all benefits subject to the ACA be added together and not exceed the established maximum. Because of the difficulties involved in combining limits from multiple vendors, these employers have an additional year to fully comply with this requirement subject to the following conditions:
Single Administrator: If an employer’s benefits are handled by a single administrator (or insurer), its plan must have an OOP limit no greater than $6,350 (individual) and $12,700 (family).
Multiple Administrators With Current OOP Maximums: If an employer’s separate benefits are handled by separate administrators, each separately administered benefit must have an OOP maximum no greater than $6,350 (individual) and $12,700 (family), if the benefit had an OOP maximum in the prior plan year. For example, if medical and pharmacy benefits are administered separately, an individual would have a $6,350 OOP maximum for medical benefits and a $6,350 OOP maximum for pharmacy benefits.
Multiple Administrators Without Current OOP Maximums: If a separately administered benefit does not have an OOP maximum, the employer will not have to implement an OOP maximum for that benefit during the 2014 transition year. For example, if medical and pharmacy benefits are administered separately, the medical benefit has an OOP maximum, but the pharmacy benefit does not, an individual would have a $6,350 OOP maximum for medical benefits and no OOP maximum for pharmacy benefits.
For plan years beginning on or after January 1, 2015, all employer group health plans subject to the ACA must have a single OOP maximum for all benefits offered under that plans, regardless of whether the benefits are administered by multiple vendors.
For plan years beginning in 2014, the maximum deductible for non-grandfathered fully insured small group health plans for self-only and family coverage could not exceed $2000 and $4000 respectively. These deductible limits were eliminated effective April 1, 2014 as part of the Protecting Access to Medicare Act of 2014.
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