Most changes jeopardize health plans grandfathered status

June 28, 2010
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The IRS, U.S. Department of Labor and HHS jointly released interim final regulations June 14 regarding the grandfathered status of health plans under health care reform. Most changes will jeopardize a plan’s grandfathered status under the new regulations.

Grandfathered plans are fully insured or self-funded health plans in existence on March 23, 2010 (the date health care reform was enacted). They generally include existing participants as well as subsequently enrolling individuals, and are subject to many insurance market reform rules under health care reform but have relief from others. For example:

  • Grandfathered plans, like non-grandfathered plans, must allow older dependent children to be eligible until age 26. However, for plan years beginning before 2014, grandfathered plans are not required to offer coverage to an adult dependent child who is eligible for any other employer-sponsored health plan.

  • Grandfathered plans are not required to offer “first dollar” preventive care with no participant cost-sharing.

  • Grandfathered plans are not subject to the new nondiscrimination rules affecting highly compensated individuals participating in fully-insured group health plans.

  • Grandfathered plans are not subject to certain new patient protections. For example, unlike non-grandfathered plans, grandfathered plans may continue to limit the types of health care providers that may be designated as a primary care physician, require preauthorization for emergency services or provide less favorable coverage for non-network emergency care.

  • Grandfathered plans are not required to provide coverage for participation in clinical trials.

Health care reform did not address whether or how a grandfathered plan can lose its grandfathered status and, as a result, be subject to the requirements applicable to non-grandfathered plans. Because of this, many in the employee benefits community expressed a concern that significant health plan changes could jeopardize grandfathered status.

The new regulations validate these concerns, indicating that the grandfathered plan rule is not intended to provide permanent relief from the insurance market reform requirements. Rather, the grandfathered plan rule should be viewed as providing transition relief to allow for the gradual implementation of the new requirements. Accordingly, not only significant plan changes but most plan changes will put a health plan’s grandfathered status at risk.

The following post-March 23, 2010, changes will cause a plan’s grandfathered status to be lost:

Significant reduction in benefits. The elimination of all or substantially all benefits to diagnose or treat a particular condition, even if the condition only affects relatively few participants. This also includes the elimination of benefits for any element necessary to diagnose or treat a condition. For example, if a plan provides coverage for a particular mental health condition, the treatment for which is a combination of counseling and prescription drugs, and the plan eliminates benefits for counseling, the plan is treated as having eliminated all or substantially all benefits for that mental health condition.

Increase in participant’s coinsurance. Most health plans have a coinsurance design where the plan pays a fixed percentage of eligible charges and the participant pays the remaining percentage. Grandfathered plans cannot increase the participant’s coinsurance amount to a higher percentage.

Copay increase. Grandfathered plans cannot increase office visit and other copays beyond March 23, 2010, levels by more than the greater of $5 (adjusted annually for medical inflation) or a percentage equal to medical inflation (from March 23, 2010) plus 15 percent.

Increase in deductibles or out-of-pocket limits. Compared with the deductibles and out-of-pocket limits required as of March 23, 2010, grandfathered plans can only increase future deductibles and out-of-pocket limits by a percentage equal to medical inflation (from March 23, 2010) plus 15 percent.

Reduction in employer contribution. Employers cannot decrease the percentage of their contribution toward the total premium/cost for any tier of coverage (single, family, etc.) under a grandfathered plan by more than 5 percent below the employer’s contribution rate in effect on March 23, 2010.

Change in overall annual limit. Grandfathered plans cannot add an overall annual limit unless the limit is replacing an overall lifetime limit where the annual limit is at least as high as the lifetime limit being eliminated. Further, any existing overall annual limit cannot be reduced.

Change in fully-insured policy. If a fully-insured policy is not renewed and the employer enters into a new insurance contract (e.g., with a different insurer), grandfathered status will be lost. However, if a self-funded plan switches to a new third-party administrator, it will not jeopardize grandfathered status. The regulations solicit comments as to whether a change from a fully insured plan to a self-funded plan should trigger a loss in grandfathered status.

Many health plan changes will not cause grandfathered status to be lost, including:

Legal compliance. Changes to comply with federal or state law will not cause grandfathered status to be lost. This includes voluntary changes adopted to comply with Health Care Reform, such as a decision to allow older dependent children to participate earlier than the effective date prescribed by Health Care Reform.

Benefit improvements. Benefit improvements will not cause grandfathered status to end.

Enrollment of new employees. Coverage of new employees under a health plan after March 23, 2010, will generally not cause the loss of the plan’s grandfathered status. However, if the principal purpose of a merger or acquisition is to cover new employees under a grandfathered plan, the plan will lose its grandfathered status. Similarly, if a group of employees is transferred from one grandfathered plan to another grandfathered plan, it will jeopardize the successor plan’s grandfathered status if the new coverage would have constituted an impermissible amendment to the prior plan unless there is a bona fide employment-based reason to transfer the employees (such as a plant closure).

Other measures:

Retiree-only plans. The regulations clarify that retiree-only plans are not subject to the insurance market reforms under health care reform including, but not limited to, the ban on lifetime limits, restriction on annual limits and requirement to cover older dependent children.

Excepted benefits. Similarly, “excepted benefits” as defined under the HIPAA portability rules, such as dental-only plans, vision-only plans and most medical FSAs, are not subject to the insurance market reforms under health care reform.

Collectively-bargained plans. Health plans maintained pursuant to a collective bargaining agreement are subject to the same grandfathered plan rules as non-union plans. However, a fully insured (but not self-funded) collectively bargained plan in effect March 23, 2010, will be considered to be a grandfathered plan until the last applicable collective bargaining agreement terminates, even if there is a change in insurance carriers before that date. After the collective bargaining agreement terminates, the plan’s grandfathered status will be determined in the same manner as other plans.

Notice/record retention. Employers are required to notify participants in plan materials if a health plan is intended to qualify as a grandfathered plan. Model language is provided in the regulations. Further, employers are required to maintain records documenting the coverage in effect March 23, 2010, and any subsequent changes in order to demonstrate grandfathered status.

Transition relief. Amendments adopted on or before March 23, 2010, will not jeopardize a plan’s grandfathered status, even if the effective date is after March 23, 2010. However, amendments adopted after March 23, 2010, are subject to the new restrictions. Employers who have adopted amendments to their plans after March 23, 2010, that may cause grandfathered status to be lost have special transition relief to revoke and modify those amendments. Such an amendment must be effective as of the first day of the first plan year beginning on or after Sept. 23, 2010.

The preamble to the regulations predicts that most employers will likely abandon grandfathered status with respect to their health plans by the end of 2013. This is primarily because of the loss of flexibility to make changes to control costs, and to a lesser extent, due to the new notice and record retention rules. Employers should weigh the benefits of grandfathered status against these new requirements in evaluating whether to rely on grandfathered status going forward.

Mary Bauman is an attorney for Miller Johnson in Grand Rapids.

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