Request for Information on Benefit-Specific Waiting Periods Under
HIPAA Titles I & IV
[12/30/2004]
Volume 69, Number 250, Page 78825-78827
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54
DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2590
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
45 CFR Part 146
RIN 0938-AL64
Request for Information on Benefit-Specific Waiting Periods Under
HIPAA Titles I & IV
AGENCIES: Internal Revenue Service, Department of the Treasury;
Employee Benefits Security Administration, Department of Labor; Centers
for Medicare & Medicaid Services, Department of Health and Human
Services.
ACTION: Request for information.
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SUMMARY: The Departments invite comments about benefit-specific waiting
periods. This solicitation is to ensure that the public can provide
input into any criteria used to determine whether a benefit-specific
waiting period utilized by a group health plan or issuer is a
preexisting condition exclusion under HIPAA. The Departments are
requesting this information to help decide whether to issue any
guidance on this question, and the content of any such guidance.
DATES: The Departments request that comments be submitted on or before
March 30, 2005.
ADDRESSES: Written comments should be submitted with a signed original
and three copies (except for electronic submissions) to any of the
addresses specified below. Any comment that is submitted to any
Department will be shared with the other Departments.
Comments to the IRS can be addressed to: CC:PA:LPD:PR (REG-130370-
04), Room 5203, Internal Revenue Service, POB 7604, Ben Franklin
Station, Washington, DC 20044.
In the alternative, comments may be hand-delivered between the
hours of 8 a.m. and 5 p.m. to: CC:PA:LPD:PR (REG-130370-04), Courier's
Desk, Internal Revenue Service, 1111 Constitution Avenue, NW.,
Washington DC 20224.
Alternatively, comments may be transmitted electronically via the
IRS Internet site at: http://www.irs.gov/regs.
Comments to the Department of Labor can be addressed to: U.S.
Department of Labor, Employee Benefits Security Administration, 200
Constitution Avenue NW., Room C-5331, Washington, DC 20210, Attention:
Benefit-Specific Waiting Period Comments.
Alternatively, comments may be hand-delivered between the hours of
9 a.m. and 5 p.m. to the same address. Comments may also be transmitted
to the Department of Labor by e-mail to: E-OHPSCA.EBSA@dol.gov.
Comments to HHS can be submitted as described below:
In commenting, please refer to file code CMS 2150-NC. Because of
staff and resource limitations, we cannot accept comments by facsimile
(FAX) transmission.
You may submit comments in one of three ways (no duplicates,
please):
Electronically. You may submit electronic comments to http://www.cms.hhs.gov/regulations/ecomments
(attachments should be in
Microsoft Word, WordPerfect, or Excel; however, we prefer Microsoft
Word).
By mail. You may mail written comments (one original and two
copies) to the following address ONLY: Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Attention: CMS-2150-
NC, P.O. Box 8017, Baltimore, MD 21244-8010.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments (one original and two copies) before the
close of the comment period to one of the following addresses. If you
intend to deliver your comments to the Baltimore address, please call
telephone number (410) 786-7195 in advance to schedule your arrival
with one of our staff members. Room 445-G, Hubert H. Humphrey Building,
200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security
Boulevard, Baltimore, MD 21244-1850.
(Because access to the interior of the HHH Building is not readily
available to persons without Federal Government identification,
commenters are encouraged to leave their comments in the CMS drop slots
located in the main lobby of the building. A stamp-in clock is
available for persons wishing to retain a proof of filing by stamping
in and
[[Page 78826]]
retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
All submissions to the IRS will be open to public inspection and
copying in room 1621, 1111 Constitution Avenue, NW., Washington, DC
from 9 a.m. to 4 p.m.
All submissions to the Department of Labor will be open to public
inspection and copying in the Public Disclosure Room, Employee Benefits
Security Administration, U.S. Department of Labor, Room N-1513, 200
Constitution Avenue, NW., Washington, DC from 8:30 a.m. to 4:30 p.m.
All submissions timely submitted to HHS will be available for
public inspection as they are received, generally beginning
approximately three weeks after publication of a document, at the
headquarters for the Centers for Medicare & Medicaid Services, 7500
Security Boulevard, Baltimore, MD 21244, Monday through Friday of each
week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public
comments, phone (410) 786-7195.
FOR FURTHER INFORMATION CONTACT: Dave Mlawsky, Centers for Medicare &
Medicaid Services (CMS), Department of Health and Human Services, at 1-
877-267-2323 ext. 61565; Amy Turner, Employee Benefits Security
Administration, Department of Labor, at (202) 693-8335; or Russ
Weinheimer, Internal Revenue Service, Department of the Treasury, at
(202) 622-6080.
SUPPLEMENTARY INFORMATION:
Customer Service Information
To assist consumers and the regulated community, the Departments
have issued questions and answers concerning HIPAA. Individuals
interested in obtaining copies of Department of Labor publications
concerning changes in health care law may call a toll free number, 1-
866-444-EBSA (3272), or access the publications on-line at http://www.dol.gov/ebsa
, the Department of Labor's Web site. These regulations as well as
other information on the new health care laws are also available on the
Department of Labor's interactive Web pages, Health Elaws. In addition,
CMS's publication entitled ``Protecting Your Health Insurance
Coverage'' is available by calling 1-800-633-4227 or on the Department
of Health and Human Services' Web site (http://www.cms.hhs.gov/hipaa1), which
includes the interactive Web pages, HIPAA Online. Copies of the HIPAA
regulations, as well as notices and press releases related to HIPAA and
other health care laws, are also available at the above-referenced Web
sites.
Background
The Health Insurance Portability and Accountability Act of 1996
(HIPAA) was enacted on August 21, 1996 (Pub. L. 104-191). HIPAA amended
the Internal Revenue Code of 1986 (Code), the Employee Retirement
Income Security Act of 1974 (ERISA), and the Public Health Service Act
(PHS Act) to provide for, among other things, improved portability and
continuity of health coverage in the group and the individual insurance
markets, including group health plan coverage provided in connection
with employment. Health coverage is regulated in part by the federal
government, through the Code, ERISA, the PHS Act and other federal
provisions, and in part by the states.
The portability, access, and renewability provisions of HIPAA are
set forth in Subtitle K of the Code, Part 7 of Subtitle B of Title I of
ERISA, and Title XXVII of the PHS Act (referred to below as the HIPAA
portability provisions). The HIPAA portability provisions are designed
to improve the availability and portability of health insurance
coverage by limiting exclusions for preexisting conditions and
providing credit for prior coverage, guaranteeing availability of
health coverage for small employers, prohibiting discrimination against
employees and dependents based on health status, and guaranteeing
renewability of health insurance coverage for employers and
individuals. The HIPAA portability provisions also include rules that
guarantee access to individual health coverage for certain people who
lose their group coverage. These provisions also set forth other
requirements imposed on health insurance issuers.
The Departments issued interim regulations published in the Federal
Register on April 8, 1997 to carry out these provisions. Today,
elsewhere in this issue of the Federal Register, the Departments are
publishing final regulations governing the HIPAA portability
requirements. Also being published is a set of proposed regulations
addressing additional and discrete issues with an invitation for
comments.
Included in today's final regulations is an example illustrating
that a plan providing first-day coverage for other medical/surgical
benefits but imposing a waiting period on benefits for pregnancy is
imposing a preexisting condition exclusion. Because HIPAA prohibits
imposing a preexisting condition exclusion on pregnancy benefits, the
final regulations clarify that this plan provision is impermissible.
Several comments (including those of several state insurance
commissioners' offices) have asked the Departments to clarify that a
preexisting condition exclusion would also include any benefit-specific
waiting period or other temporary exclusion of specific benefits.
Essentially, these comments argue that some plans and issuers use
benefit-specific waiting periods that are, in effect, preexisting
condition exclusions that do not comply with HIPAA's statutory limits.
The rationale for this argument is that these exclusion periods are
likely to affect principally individuals who had a condition before the
first day of any coverage under the plan or health insurance coverage.
In addition, other comments suggest that these exclusions violate
HIPAA's nondiscrimination provisions. Nonetheless, the comments do not
suggest that it would be impermissible to impose a waiting period for
all benefits available under the plan or to impose permanent exclusions
on specific benefits (that is, these types of exclusions would not be
considered a preexisting condition exclusion nor would they be
considered discrimination based on health status).
Comments
The Departments welcome further comments on this issue of benefit-
specific waiting periods. In particular, the Departments are interested
in comments reflecting the experience of group health plans, health
insurance issuers, states, individuals, and other interested parties
with waiting periods on specific benefits such as tonsillectomies,
hernia repairs, and organ transplants. Rules under consideration might
also affect plans that cover only emergency services for an initial
period; comments on these types of provisions are also welcome. One
possible standard for determining whether a benefit-specific waiting
period is operating as a preexisting condition exclusion is whether the
waiting period is likely to affect principally individuals who had a
condition before the first day of any coverage under the plan or health
insurance coverage. Several factors affect the application of such a
standard to a particular plan's waiting period, including the relevant
population considered to determine whether the impact is likely to
affect principally individuals who had a condition before the first day
of coverage, the condition to which a plan's waiting period is applied,
and the length of a plan's
[[Page 78827]]
waiting period (because, generally, as the waiting period becomes
longer, a greater number of individuals affected will not have had the
condition before enrolling). The Departments welcome comments on this
standard and these factors, and also invite suggestions for alternative
standards.
In order to quantify the costs and benefits associated with an
interpretation that certain benefit-specific waiting periods function
as preexisting condition exclusions, the Departments are interested
also in comments, studies, surveys, or reports on the prevalence of
such exclusions in group health coverage and individual health
insurance coverage, what types of conditions or treatments are subject
to benefit-specific waiting periods, the duration of such periods, and
alternative cost-control mechanisms that may be available.
Signed at Washington, DC, this 8th day of December, 2004.
Nancy J. Marks,
Associate Chief Counsel/Division Counsel, Tax Exempt and Government
Entities, Internal Revenue Service, Department of the Treasury.
Signed at Washington, DC, this 9th day of December, 2004.
William F. Sweetnam, Jr.,
Benefits Tax Counsel, Department of the Treasury.
Signed at Washington, DC, this 1st day of December, 2004.
Ann L. Combs,
Assistant Secretary, Employee Benefits Security Administration, U.S.
Department of Labor.
Dated: November 24, 2004.
Mark B. McClellan,
Administrator, Centers for Medicare & Medicaid Services.
Dated: December 2, 2004.
Tommy G. Thompson,
Secretary, Department of Health and Human Services.
[FR Doc. 04-28114 Filed 12-29-04; 8:45 am]
BILLING CODE 4830-01-P
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