What Is HIPAA?

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HIPAA, pre-existing condition exclusions, and creditable coverage

The following questions and answers apply to grandfathered plans, those that existed before September 23, 2010. Check with your employer to find out your health care plan’s start date, to learn if it’s grandfathered. If it isn’t, this section does not apply to you.

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 refers to health insurance, and 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.

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, that condition cannot be considered a pre-existing condition. (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 in the 6 months before she enrolled. Her break in coverage does not come into play 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 can 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. As of January 1, 2014, the ACA prohibits pre-existing condition exclusions in new plans.. Older individual plans (called grandfathered plans) may still use the old rules and exclude pre-existing conditions. However, pregnancy cannot be considered a pre-existing condition. Further, genetic information may not be considered a pre-existing condition if no related diagnosis has been made, regardless of whether the plan is new or grandfathered.

Since I’ve had cancer I want to focus on a new career path. How do I know if my cancer is subject to a pre-existing condition exclusion period in the plans offered at my new job?

Many plans cover pre-existing conditions right away. A plan must tell you if it has a pre-existing condition exclusion period. It 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 shorten 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 must make this decision within a reasonable time after you provide a certificate or other information that shows you had prior 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 an 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 VA, 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 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 (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.

For more information on COBRA see our document What Is COBRA?

I have my certificate from my former plan. What do I do now?

You should:

  • Make sure the information on the certificate is correct. Contact the plan administrator of your former plan if any information is wrong.
  • Keep the certificate in case you need it. You will need the certificate if you enroll in a grandfathered group health plan that has a pre-existing condition exclusion period or if you buy an individual health policy from an insurance company.

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 can enroll in the health plan. 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.

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.)

Does the new health law change the waiting period?

Starting January 1, 2014, the waiting period for eligible employees to enroll in an available group health care plan can’t be longer than 90 days.

I changed jobs and the group health plan there 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?

A grandfathered health plan may impose a pre-existing condition exclusion period only if you did not have creditable health insurance coverage in your old job, or you were without coverage for more than 63 days.

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 in some states due to differences in state laws. 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 health insurance coverage before. 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. (See the “To learn more” section to find out how to get contact information.)

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’s plan?

Not if you enroll when you are first eligible for the grandfathered 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.

How can I avoid a 63-day break in coverage to keep HIPAA protection?

There are some things you can do to avoid coverage breaks.

  • If your last coverage was very recent, and you were under a group health plan, you may be able to elect COBRA continuation coverage. Workers in companies with 20 or more employees generally qualify for COBRA. Some states have laws much like COBRA that apply to smaller companies. (See our document called What is COBRA? for details.)
  • If you are married, you can try to get onto your spouse’s group policy at work soon after losing your own.
  • You can try to buy an individual health insurance policy.

Last Medical Review: 12/31/2013
Last Revised: 12/31/2013