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 guaranteed availability of coverage and rate variability will take place in 2014 [edit-- "guaranteed availability" I initially had misunderstood as "pre-existing conditions" because of John Dingell's Facebook post talking about the rules that included: “Market Rules” that would prohibit health insurance companies from discriminating against individuals because of a pre-existing or chronic condition, beginning in 2014. For more information regarding this rule, visit http://www.ofr.gov/OFRUpload/OFRData/2012-28428_PI.pdf]. I plead guilty to following his lead-- this rule is NOT about pre-existing conditions, exactly. It is about whether insurers are required to allow individuals or groups to enroll, and which policies will be required to limit rate variations to age, tobacco use, family size and geographic area. Thanks to a LIA commenter who caught that!
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 the 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.
The new proposed rule, just issued, 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 offer coverage to all comers (edited). Even though this wording does not refer to pre-existing conditions, it allows plans to remain available that can deny access for unknown reasons.
It also says that "old" plans are not subject to the new rules restricting rate variability to age, tobacco use, family size and geographic area. So the old plans, including group plans, are still allowed to base premium rates on health status (and maybe gender? I can't tell). This is the problem that has kept some employers from being able to afford coverage for their businesses.
That is worrisome (word replacing "huge", when I understood it to refer to pre-existing conditions). Old plans can turn individuals or groups down for coverage. Could they do it, based on awareness of claims data regarding pre-existing conditions, as long as they don't get caught? I think it may leave the door open. 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.” Old plans can also continue to charge more based on health conditions in a group.
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”. If it is cheaper for insurers or employers to stick with "old" plans, will we see enough new ones on the Exchanges? And will these "old" plans find ways to deny coverage? Will there be enough "new" small group plans available?
There are too many loopholes built into the ACA. It certainly seems odd to include different guidelines for which insurances must make their product available to all willing parties, and how the rates can vary, as a separate item from prohibiting discrimination based on health status. An insurer can't have pre-existing condition exclusions, but it can close the door to you when you apply or charge you extra money. This is Obama’s appointee making the administrative rules, so if you don’t like it, better speak up now.