HIPAA portability

Scope

HIPAA protects workers and their families.

Regulatory citations

• 29 CFR 2590 — Rules and regulations for group health plans
• 45 CFR 144 — Requirements relating to health insurance coverage
• 45 CFR 146 — Requirements for the group health insurance market
• 45 CFR 147 — Health insurance reform requirements for the group and individual health insurance markets
• 45 CFR 150 — CMS enforcement in group and individual insurance markets
• 45 CFR 160 — General administrative requirements

Key definitions

• None

Summary of requirements

HIPAA:

• Includes protections for coverage under group health plans that limit exclusions for preexisting conditions (see below about the ACA);
• Prohibits discrimination against employees and dependents based on their health status; and
• Allows a special opportunity to enroll in a new plan to individuals in certain circumstances.

HIPAA may also give employees a right to purchase individual coverage if they have no group health plan coverage available, and have exhausted Consolidated Omnibus Budget Reconciliation Act (COBRA) or other continuation coverage.

HIPAA protects workers and their families by:

• Limiting exclusions for preexisting medical conditions (known as preexisting conditions) [Note: The Affordable Care Act (ACA) eliminated preexisting condition exclusions, so this HIPAA provision essentially became moot];
• Providing credit against maximum preexisting condition exclusion periods for prior health coverage and a process for providing certificates showing periods of prior coverage to a new group health plan or health insurance issuer [See note above];
• Providing new rights that allow individuals to enroll for health coverage when they lose other health coverage, get married, or add a new dependent;
• Prohibiting discrimination in enrollment and in premiums charged to employees and their dependents based on health status-related factors;
• Guaranteeing availability of health insurance coverage for small employers and renewability of health insurance coverage for both small and large employers;
• Preserving the states’ role in regulating health insurance, including the states’ authority to provide greater protections than those available under federal law; and
• Improving disclosure about group health plans

Special enrollment rights. Special enrollment rights are provided for:

• Individuals who lose their coverage in certain situations, including on separation, divorce, death, termination of employment and reduction in hours, or if employer contributions toward the other coverage terminates.
• For employees, their spouses and new dependents upon marriage, birth, adoption, or placement for adoption.
• Employees and dependents whose Medicaid or CHIP coverage is terminated as a result of loss of eligibility.
• Employees or dependents who become eligible for a premium assistance subsidy under Medicaid or CHIP.

Discrimination prohibitions. Ensure that individuals are not excluded from coverage, or charged more for coverage offered by a plan or issuer, based on health status-related factors.

• The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination on the basis of genetic information with respect to health insurance and employment.
• Title I of the GINA amended the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, the Internal Revenue Code, and title XVIII of the Social Security Act (relating to medigap). Many of these amendments involved the use of genetic information to deny insurance or other benefits.
• Title II of the GINA makes it unlawful for employers to use certain genetic information to discriminate against employees or applicants. Basically, the law adds “genetic information” to the list of protected classes under federal discrimination laws. Other federal laws already prohibit discrimination based on race, gender, age, disability, and other characteristics.

Notice requirements. At or before an employee is initially offered the opportunity to enroll in a plan, the plan must furnish the employee with a notice of special enrollment.

Employers that maintain group health plans in states that provide Medicaid or CHIP assistance are required to provide written notices to their employees, informing them of the potential opportunities for premium assistance. They can provide the notification either through a separate notice, or by including it in SPDs or enrollment materials. A disclosure to the state may also be required if requested by the state. (See the “Health Plans ” EZ explanation for additional information.)

EBSA. The Employee Benefits Security Administration (EBSA) of the Department of Labor administers the Health Insurance Portability and Accountability Act (HIPAA).

HIPAA amended the Employee Retirement Income Security Act (ERISA) to provide for, among other things, improved portability and continuity of health insurance coverage provided in connection with employment. The HIPAA portability provisions relating to group health plans and health insurance coverage offered in connection with group health plans are set forth under Part 7 of Subtitle B of Title I of ERISA .

The provisions of Title I of ERISA are administered by the U.S. Department of Labor. ERISA confers substantial law enforcement responsibilities on the Department. Part 5 of ERISA Title I gives the Department authority to bring a civil action to correct violations of the law, gives investigative authority to determine whether any person has violated Title I, and imposes criminal penalties on any person who willfully violates any provision of Part 1 of Title V.