Further to my blogs of 9/25 and 10/13, the Employee Benefits Security Administration (the “EBSA”) continues to issue FAQs on the Affordable Care Act. The latest FAQs have been dubbed “FAQs III“. FAQs III has only 2 Q & As. They deal with an exemption from some of the new requirements under the Affordable Care Act. Here is what they say:
The HIPAA statutory exemptions, in effect since 1997 for group health plans with “less than two participants who are current employees” (a “HIPAA Exempt Plan”), apply to the group market reforms of the Affordable Care Act. The preamble to the interim final regulations previously issued on grandfathered plans (75 FR 34539-34540, published June 17, 2010) indicated that HIPAA Exempt Plans are also exempt from the group market reform requirements of the Affordable Care Act.
Until further guidance is issued, the Departments responsible for enforcing the Affordable Care Act (namely the Department of Labor, the Treasury Department and the Health and Human Services Department) will treat a plan which covers only retirees and/or individuals on long-term disability as being a HIPAA Exempt Plan and thus exempt from the Affordable Care Act’s group market reforms. To the extent future guidance on this issue is more restrictive as to this exemption, it will be applied prospectively only. Pending such further guidance, a plan may adopt any or all of the HIPAA and Affordable Care Act market reform requirements, without prejudice to its exemption. This voluntary compliance is encouraged.