ACS :: Frequently Asked Questions

How does HIPAA limit the pre-existing condition exclusion of group or employer health insurance coverage?

It counts "creditable" health coverage against the pre-existing condition time: Under HIPAA, a group health plan may not impose a pre-existing condition exclusion if the person has had creditable medical coverage for at least 12 months as long as the person had no more than 63 days with no coverage. (Creditable coverage includes most health coverage, such as a group health plan, HMO, individual health insurance policy, Medicaid, or Medicare.) If the coverage was for less than 12 months, the pre-existing exclusion period may be reduced by the number of months of prior creditable coverage.

Example: Maria completed her cancer treatment 2 months ago. She had health coverage for the 14 months before she left her job 6 weeks ago, which means she would have 14 months of creditable coverage. The 42 days she went without insurance doesn't qualify as a "significant break" in coverage. She would have no pre-existing condition exclusion at her new job if she signs up for insurance there, but she must sign up before she has had 63 days without insurance.

It only allows exclusion of pre-existing conditions for which you were seen or treated in the past 6 months: Also, a group health plan may only impose a pre-existing condition exclusion on new enrollees for conditions for which medical advice, diagnosis, care, or treatment was received or recommended within the 6-month period before their enrollment date (called the 6-month "look-back" period). A person's enrollment date is the earlier of either the first day of coverage or the first day of any waiting period for coverage.

If you had a medical condition in the past, but have not received any medical advice, diagnosis, care, or treatment for it within the 6 months before your enrollment date in the plan, your old condition is not considered a pre-existing condition to which an exclusion can be applied. (Check with your state's Insurance Commissioner's Office to see if a shorter look-back period might apply to you.)

Example: Alana was diagnosed with lobular breast carcinoma in situ 4 years ago. She didn't need treatment, but she was told to follow up every year with her oncologist. She saw her doctor a year ago. Then 10 months later, she found a job and signed up for their group insurance. Her breast carcinoma would not be considered a pre-existing condition because she has had no treatment nor was treatment recommended for her for the 6 months before enrolling. Her break in coverage does not come into play at all because she is not considered to have a pre-existing condition.

It sets a maximum length of 12 months on pre-existing condition exclusions if you don't enroll late into the new plan: HIPAA also sets a maximum of 12 months which a group health plan may impose as a pre-existing condition exclusion period -- even if the person has been uninsured up to this point. This means people will not be punished for getting care for chronic and life-long illnesses in the past.

Example: Joseph has been out of work for 5 months, and has been uninsured during that time. Last month, he learned he had prostate cancer. Joseph's prior coverage is not creditable because his break in coverage was more than 63 days. And, since he was given a diagnosis and/or medical advice about it during the past 6 months, his pre-existing cancer may be excluded for up to 12 months. But if he signs up for the health plan, any cancer treatment he gets after the year has passed would be covered.

Are there "pre-existing conditions" that cannot be excluded from coverage under HIPAA?

Yes. Pregnancy cannot be considered a pre-existing condition. A pre-existing exclusion period cannot be applied to a newborn or an adopted child under the age of 18. Genetic information may not be considered a pre-existing condition if no related diagnosis has been made.

Since I have had cancer I want to focus on a new career path. How do I know if I am subject to any pre-existing condition exclusion period in my new job?

Many plans do cover pre-existing conditions. A plan must tell you if it has a pre-existing condition exclusion period (and can exclude coverage for a pre-existing condition only after you have been notified). The plan must also tell you about your right to show that you had prior health insurance coverage (creditable coverage) to reduce the pre-existing condition exclusion period.

If the plan does have a pre-existing condition exclusion period, the plan must decide about your insurance coverage and the length of any pre-existing condition exclusion period that applies to you. In general, a plan is required to make this decision within a reasonable time after you provide a certificate or other information that shows you had insurance coverage.

You must be notified of this decision if, after looking at all the evidence of creditable coverage you've had recently, the plan decides to impose a pre-existing condition exclusion period for your pre-existing condition. (Creditable coverage includes most health coverage, such as a group health plan, HMO, COBRA, an individual health insurance policy, Medicaid, Medicare, TRICARE, CHAMPUS, Veteran's Health Coverage from the V.A., or Indian Health Service. It does not include long-term care policies, dental or vision-only plans, supplemental coverage, or cancer-only policies.) The notice must also tell you the reason for the decision, the information the plan used in making the decision, and any appeals that may be available to you.

The plan may change its first decision if it later finds that you did not have the creditable coverage you claimed. In this case, the plan must tell you about this change. And until a final decision is made, the plan must act according to its first decision about covering medical services.

How do newly hired employees prove that they had prior health coverage to be credited under HIPAA?

Under HIPAA, an employee's former group health plan and any insurance company or HMO providing such coverage is required to give the employee a statement of prior health coverage. This is commonly called a certificate of creditable coverage.

This certificate must be given to you when you lose coverage under the plan or otherwise become eligible for COBRA health insurance coverage. It must also be given to you when you stop working or when your COBRA coverage stops. COBRA (Consolidated Omnibus Budget Reconciliation Act) is the name of a federal law that gives workers or their family members a chance to buy group health coverage through their employer's health plan for a limited period of time (for 18, 29, or 36 months) if they lose coverage due to certain events, including the end of employment, divorce, or death. You may request a certificate for up to 24 months after your coverage ended. You also may request a certificate even before your coverage ends.

Can my old plan simply call my new plan to give them information about my creditable coverage for HIPAA?

Yes. If you, your new plan, and your old plan all agree, the information may be transferred by telephone. You are also entitled to ask for a written certificate for your records when your coverage information is given over the phone or by other means.

My employer has a "waiting period" for enrollment in the health plan. Does this change the pre-existing condition exclusion period under HIPAA?

The HIPAA law does not stop a plan or company from having a waiting period for health insurance enrollment. For group health plans, a waiting period is the period that must pass before an employee or a dependent is eligible to enroll in the health plan. Some plans have waiting periods and pre-existing condition exclusion periods. But if a plan has both a waiting period and a pre-existing condition exclusion period, the pre-existing condition exclusion period begins when the waiting period begins.

Here's an example: If your company has a 4-month waiting period and a 6-month pre-existing exclusion period, your pre-existing condition exclusion is still only 6 months total. You have only 2 months of pre-existing exclusion time left if you sign up after the 4-month waiting period. (Of course, if you had prior creditable coverage, you might have no pre-existing exclusion time left after the 4-month waiting period, as noted above.)

I changed jobs and my new group health plan imposes a pre-existing condition exclusion period. How does my new plan decide how long my pre-existing condition exclusion period will be under HIPAA?

The maximum length of a pre-existing condition exclusion period is 12 months after the enrollment date, or 18 months in the case of a "late enrollee." (A late enrollee is a person who enrolls in a plan after the earliest date on which coverage can become effective under the terms of the plan. If you enroll during an open enrollment period or due to a family change, you are not considered a late enrollee.) This 12- or 18-month period may be shorter under some state laws if your coverage is insured through an insurance company or offered through an HMO. Check with your State Insurance Commissioner's Office to see whether your exclusion period might be shorter.

A plan must shorten a person's pre-existing condition exclusion period by the number of days the person had creditable coverage. But if you were without coverage for 63 days or more (called a "significant break in coverage"), HIPAA does not require the new insurance plan to count any days of creditable coverage that came before the break. Keep in mind that some states may require employers to count coverage that came before a break that was longer than 63 days. Check with your State Insurance Commissioner's Office to see whether your state lets coverage count even though it's been a longer time since you had it.

I started a new job 45 days after my previous group health plan coverage ended. That coverage lasted 24 continuous months, during which I had cancer treatment. Will any future cancer claims be subject to the 12-month pre-existing condition exclusion period imposed by my new employer?

Not if you enroll when you are first eligible for the new health insurance plan, as long as you have no future breaks in coverage longer than 63 days. The 45-day break in coverage does not count as a significant break in coverage under HIPAA. Under federal law, a significant break in coverage is at least 63 consecutive days. Since you had more than 12 months of creditable coverage from your previous group plan without a significant break, you would not be subject to the pre-existing condition exclusion period imposed by your new employer's plan if you enroll when you are first eligible.

Under HIPAA, can I lose or be charged more for coverage if my health changes? I have been treated for cancer and I am worried.

Group health plans and issuers may not set up rules for one person's eligibility (including continued eligibility) to enroll under the terms of the plan based on "health status-related factors." These factors include your health status, medical conditions (physical or mental), past medical claims, receipt of health care, medical history, genetic information, and evidence of insurability or disability. For example, you cannot be excluded or dropped from coverage under your group health plan just because you develop cancer.

Also, group plans and issuers may not require a person to pay a premium or contribution that is greater than that for a similarly situated person based on a health status-related factor. On the other hand, if the employer raised everyone's rates or stopped offering health coverage to anyone, it would not violate HIPAA.

Can a group health plan or group health insurance issuer require me to pass a physical exam to be eligible to enroll in the plan? I have some side effects from the cancer treatment that may take a long time to go away.

No. A group health plan or group health insurance issuer may not make you pass a physical exam for enrollment. Even if you are a late enrollee, you cannot be required to pass a physical exam to be eligible for coverage.

My group health plan requires me to complete a detailed health history questionnaire and subtracts Health Points for prior or current health conditions. In order to enroll in the plan, an individual must score 70 out of 100 total points. I scored only 50 points and was denied eligibility in the plan. Is this permitted?

No. But the HIPAA non-discrimination provisions do not automatically forbid health care questionnaires. It depends on how the information on them is used. In this case, the plan requires people to score a certain number of Health Points that are related to current medical conditions in order to enroll in the plan. This is not allowed and is considered discrimination in rules for eligibility based on a health factor.

My group health plan imposes a 12-month pre-existing condition exclusion period but, after the first 6 months, the exclusion period is dropped for individuals who have not had any claims since enrollment. Is this permissible under HIPAA?

No. A group health plan may impose a pre-existing condition exclusion period, but the exclusion must be applied in the same way to all similarly situated people. Here, the plan's provisions do not apply uniformly because people who have medical claims for the first 6 months following enrollment are not treated the same as similarly situated people with no claims during that period. Therefore, the plan provision violates the HIPAA non-discrimination provisions.

My group health plan excludes coverage for benefits for a health condition that I have (no matter whether it pre-existed or not). Is my plan violating HIPAA's non-discrimination provisions by imposing this exclusion?

Group health plans may decide not to cover a certain disease. They may limit or exclude benefits for certain types of treatments or drugs, or limit or exclude benefits based on their decision of whether the benefits are experimental or medically needed. But they can only do this if the benefit restriction is applied uniformly to all people in similar situations and is not directed at anyone in the plan based on a health factor. So, if the same standard applies to everyone in the group, it may be allowed. An example might be coverage of a treatment that has not been scientifically proven.

My health plan has a $500,000 lifetime limit on all benefits covered under the plan. The plan also has a $2,000 lifetime limit on all benefits provided for one of my health conditions. Are these limits permissible under HIPAA?

A group health plan may apply lifetime limits generally or with respect to benefits for a certain disease or treatment, but only if the limits are applied uniformly to all people in similar situations and are not directed at anyone covered by the plan because of a health factor. This means both the $500,000 lifetime limit and the $2,000 condition-specific lifetime limit are allowed if applied uniformly to all similarly situated plan members. So again, if everyone in the group has the $500,000 lifetime limit and the $2,000 limit on the same health condition, it may be allowed.

I love to ski. Can I be excluded from enrolling in my employer's health plan because I ski?

No. Taking part in activities like skiing is actually evidence of insurability, a health factor, so it should work in your favor rather than against you. You may not be denied eligibility to enroll in your employer's plan because you ski.

Can my health plan or issuer deny benefits for an injury based on the source of that injury? When my mother developed cancer, I became very depressed and I took an overdose of sleeping pills.

If the injury results from a medical condition or an act of domestic violence, the health plan or issuer may not deny benefits for the injury, as long as it is an injury the plan would otherwise cover.

For example, a plan may not exclude coverage for self-inflicted injuries (or injuries resulting from attempted suicide) with respect to an individual if the injuries are otherwise covered by the plan and if the injuries are the result of a medical condition, such as depression.

But a plan or issuer may decide not to cover injuries that do not result from a medical condition or domestic violence, such as injuries sustained in high-risk activities, such as bungee jumping. (But the plan could not exclude people from enrollment in the plan because their hobby is bungee jumping. And it would still cover treatment for other medical conditions that were not bungee-related.)

I have a history of high claims. As a person with cancer, I have had 3 different types of treatment and many medicines. Can I be charged more than similarly situated individuals based on my claims?

No. Group health plans and group health insurance issuers cannot charge one person more for coverage than a similarly situated person based on any health factor.

Yes. The first step you should take even before filing a claim is to carefully read your health plan's summary plan description (SPD). This is a document that your health plan administrator must give you after you join your health insurance plan. This plan summary will tell you how the plan works, what benefits it provides, and how the benefits may be obtained or the process for filing your claim. It should also describe your rights and protections under ERISA (Employee Retirement Income Security Act).

Each SPD should show you the procedure for filing a claim. Some plans may require you to file a claim (or get prior authorization or permission) before you can get medical treatment. Some plans have special rules for urgent care. For other plans, you must submit a claim for reimbursement (to get paid back the covered portion) after you pay for the care yourself.

Follow the steps outlined in your SPD when filing your claim. If you cannot find the steps, or don't understand them, call your plan administrator. Or, you may contact the Department of Labor's Employee Benefits Security Administration to help you understand your rights.

Your plan should state the time within which it must give you the decision on your claim. Be sure to look for this information in your SPD. When you submit a claim to your plan, note the date and keep track of the time as you wait for a decision. Some plans have different time periods depending on the nature of the benefit claim. For example, the claim for urgent care may be different and the claim may be filed before or after medical care is received. If you do not get a response from your plan within the stated time period, contact your plan administrator. See our document, Health Insurance and Financial Assistance for the Cancer Patient for more information.

Your plan may deny a claim for many reasons. For example, you may not have yet paid the amount of the yearly deductible. The requested treatment may be something the plan says is not covered or medically needed. Or you may not have filed enough information for the plan administrator to process the claim. Look for the reason and other information provided in the notice of denial so that you can figure out if you want to appeal the decision.

You can then re-submit the claim with a copy of the denial letter and your doctor's explanation, along with any other written information that supports using the test or treatment that is being denied. Sometimes the test or service will only need to be "coded" differently.

When you are informed that your claim has been denied, your plan administrator also must tell you how to appeal your denied claim for a full and fair review. Your plan will tell you how long you have to file your appeal. Put this date on your calendar. When you appeal a denial, be sure to include any additional information or evidence required by your plan to support your claim, and get it to the right person and address within the time limit.

The plan's claims procedure should also tell you how long the plan has after you file to make a decision on your appeal. Make a note of this date, too.

When the decision is made on your appeal, you must be told. If your claim is denied, you must be informed of the reason and the plan rules upon which the decision was based. This must be in writing and in language you can understand.

If you disagree with the final decision on your appeal or if your plan fails to make a timely decision, you have the right to file suit in court to get your benefits. The plan's explanation of denial should describe this right. You also may wish to get in touch with the Department of Labor's Employee Benefits Security Administration about your rights under ERISA. You might want to read more about claim denials in our document, Health Insurance and Financial Assistance for the Cancer Patient.

Is it OK for a health insurance issuer to charge a higher premium to one group health plan that covers individuals, some of whom have harmful health factors, than it charges another group health plan made up of fewer people with unfavorable health factors?

Yes. HIPAA does not restrict a health insurance issuer from charging a higher rate to one group health plan (or employer) over another. An issuer may take health factors of individuals into account when establishing blended rates for group health plans (or employers). This may result in one health plan (or employer) being charged a higher premium than another for the same coverage through the same issuer.

My group health plan has a "non-confinement provision" which states that if a person is confined to a hospital at the time they would normally become eligible for enrollment, they aren't eligible until they leave the hospital. What if I am in the hospital with a low white cell count due to chemotherapy at the time of enrollment eligibility? Is this allowed?

No. A group health plan may not restrict a person's eligibility, benefits, or the effective date of coverage based on the person being in a hospital or other health care facility. Also, a health plan may not set a person's premium based on their being in the hospital.

My group health plan provides that dependents are generally eligible for coverage only until age 25. But this age restriction does not apply to disabled dependents, who may keep health coverage past age 25. Are they allowed to favor disabled dependents?

Yes. It is allowed for a plan or issuer to treat a person with an adverse health factor more favorably by offering extended coverage.

What kinds of information do group health plans have to give to participants and beneficiaries under HIPAA?

HIPAA and other laws have made important changes under the Department of Labor disclosure rules. Under these rules, group health plans must improve the documents employers are required to give to employees at certain key intervals, such as summary plan descriptions (SPDs) and summaries of material modifications (SMMs) to make sure they:

Can employers use e-mail systems to communicate these disclosures to employees? If so, do employees still have a right to get a paper copy of the information from their plan?

Yes to both questions. The disclosure rules provide a "safe harbor" for using electronic media (e-mail) to furnish group health plan SPDs and other SMMs. To use the "safe harbor" employees must be able to get the electronic documents at their worksite (there are also some other requirements). Participants also keep the right to get the disclosures on paper when they ask for it and free of charge.

States enforce the legal requirements on health insurance issuers. If a state does not act in its areas of responsibility, the Secretary of Health and Human Services may decide that the state has failed to "substantially enforce" the law. Federal authority can be used, through the Centers for Medicare and Medicaid Services, to enforce the law and penalize the insurers.

The Secretary of Labor also has the authority to enforce the health care portability requirements on group health plans under ERISA, including self-insured arrangements. And, participants and beneficiaries can file suit to enforce their rights under ERISA, as amended by HIPAA.

Yes, in certain circumstances. States may impose stricter requirements on health insurance issuers in the 7 areas listed below. States may:

States may sometimes impose other requirements with respect to insurance companies and HMOs. If your health coverage is offered through an HMO or an insurance policy issued by an insurance company, you should check with your state insurance department's office to find out the rules in your state. Find your State Insurance Department in the blue pages of your phone book, or visit the National Association of Insurance Commissioners on the Web at: www.naic.org/state_web_map.htm.

You may be able to get coverage under an individual insurance policy issued by an insurance company or, in some states through a high-risk pool. HIPAA guarantees access to individual insurance to "eligible individuals."

You may have the opportunity to buy an individual insurance policy whether you are laid off, fired, or quit your job. For information on individual insurance policies or on state high-risk pools you should contact your State Insurance Department. For more on this, see the next question.

There is a special provision of the HIPAA law, which is intended to allow people to get health coverage after other options are exhausted. But before HIPAA can help a person with no insurance options get coverage, special requirements must be met:

People who meet these requirements are called "HIPAA eligible individuals." If you are eligible and act within 63 days of losing your coverage, HIPAA guarantees that you can buy some type of coverage and that you will have a choice of at least 2 options. This may include your state's high risk insurance pool. (Not every state has a risk pool; see our document Health Insurance and Financial Issues for the Cancer Patient for more about insurance and risk pools.) HIPAA can help those left out of health coverage after they've lost eligibility for group plans and COBRA.

HIPAA does not limit what health insurance companies charge (although some state laws do), but it can be sure that some coverage is offered. Again, depending on the health plan and the situation, HIPAA prevents an insurance plan from denying coverage based on a person's health history or a pre-existing condition.

People often do not take advantage of this because they don't know that they are eligible. Sometimes people find out they would have been eligible, but it may not help if the 63-day time limit has passed. If you think you might qualify for this, contact your state insurance department or commission right away to find out what is available to you. You can find your State Insurance Department in the blue pages of your phone book, or visit the National Association of Insurance Commissioners on the Web at: www.naic.org/state_web_map.htm.

What if I can't afford the premiums for an individual insurance policy? Things have been pretty tight since my wife has been diagnosed with cancer.

HIPAA does not limit premium rates. HIPAA does not have control over state laws that regulate the cost of insurance. But some states limit insurance premiums. For information on how your state law may limit premium rates for individual insurance policies or for information on state high-risk pools, contact your State Insurance Commissioner's Office. You can also find more information in our document, Health Insurance and Financial Assistance for the Cancer Patient.

It is generally your option to renew or continue individual health coverage. Most health insurance policies expire each year and must be renewed. Federal and state laws prohibit insurers from refusing to renew health insurance policies because of the health status of the individual.

There are some exceptions to the guaranteed renewability of a policy if the insurer is unable to meet their financial obligations or leaves the market. It may also be canceled or discontinued if you failed to pay premiums, committed fraud, terminated the policy, moved outside the service area, or ended the membership in the association that is part of the group policy.

Also, insurers may sell short-term policies that are clearly marketed as non-renewable. If you buy a short-term non-renewable policy and then get sick, you will not have the right to renew the policy when it expires.

If I change jobs, can HIPAA guarantee the same benefits that I have under my current plan?

No. When a person moves into a new plan, the benefits the person receives will be those provided under the new plan. Coverage under the new plan can be different from the coverage under the former plan.

Does HIPAA require employers to offer health coverage or require plans to provide specific benefits?

No. The employer voluntarily provides health coverage. HIPAA does not require specific benefits nor does it bar a plan from restricting the amount or nature of benefits for people in similar situations.

In general, no. But HIPAA makes 2 changes to the length of the COBRA continuation coverage period.

Even though it doesn't extend COBRA, HIPAA may still help you if you have used all of your COBRA coverage and are not eligible for other kinds of insurance. You may qualify for special HIPAA eligibility for other health coverage. See the section "If I can't get group coverage, and have no other options, what do I do?"

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