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Discrimination in Health Plan Benefit Plans


The Department of Labor has instituted disability nondiscrimination regulations which may apply to those with "health factors."  The regulations are complex; for example, they would prohibit a plan from refusing to enroll participants with a disability into the general medical benefits plan, but the regulations would not prohibit the exclusion of benefits for the treatment of that disability itself, so long as the exclusion applied to all members of the plan equally. Similarly, limits one type of therapy which apply to all illnesses would still be legal.  However, a plan  cannot modify its rules in response to a particular person's claims. See 29 CFR sec. 2590.702 (full text)

The regulations apply to both employees and their dependents.

The basic rule is as follows:

(b) Prohibited discrimination in rules for eligibility--(1) In general--
(i) A group health plan, ..., may not establish any rule for eligibility ...of any individual to enroll for benefits under the terms of the plan or group health insurance coverage that discriminates based on any health factor that relates to that individual or a dependent of that individual.
(ii) For purposes of this section, rules for eligibility include, but are not limited to, rules relating to--
(A) Enrollment;
(B) The effective date of coverage;
(C) Waiting (or affiliation) periods;
(D) Late and special enrollment;
(E) Eligibility for benefit packages (including rules for individuals to change their selection among benefit packages);
(F) Benefits (including rules relating to covered benefits, benefit restrictions, and cost-sharing mechanisms such as coinsurance, copayments, and deductibles);
(G) Continued eligibility; and
(H) Terminating coverage (including disenrollment) of any individual under the plan.

Exceptions
This rule is subject to the provisions of 
paragraph (b)(2) of this section (explaining how this rule applies to benefits),
paragraph (b)(3) of this section (allowing plans to impose certain preexisting condition exclusions),
paragraph (d) of this section (containing rules for establishing groups of similarly situated individuals),
paragraph (e) of this section (relating to nonconfinement, actively-at-work, and other service requirements),
paragraph (f) of this section (relating to bona fide wellness programs), and
paragraph (g) of this section (permitting favorable treatment of individuals with adverse health factors).

(c) Prohibited discrimination in premiums or contributions--
(1) In general--(i) A group health plan, ... may not require an individual, as a condition of enrollment or continued enrollment under the plan or group health insurance coverage, to pay a premium or contribution that is greater than the premium or contribution for a similarly situated individual  enrolled in the plan or group health insurance coverag...based on any health factor that relates to the individual or a dependent of the individual.

Definition of Health Factor
(a) Health factors. (1) The term health factor means, in relation to an individual, any of the following health status-related factors:
(i) Health status;
(ii) Medical condition (including both physical and mental illnesses), as defined in Sec. 2590.701-2;
(iii) Claims experience;
(iv) Receipt of health care;
(v) Medical history;
(vi) Genetic information, as defined in Sec. 2590.701-2;
(vii) Evidence of insurability; or
(viii) Disability.

A plan is not required to provide coverage which would benefit a person with a disability.
The regulation states:
"(b)(2) Application to benefits--(i) General rule--
(A) Under this section, a group health plan ... is not required to provide coverage for any particular benefit to any group of similarly situated individuals.
(B) However, benefits provided under a plan ... must be uniformly available to all similarly situated individuals... Likewise, any restriction on a benefit or benefits must apply uniformly to all similarly situated individuals and must not be directed at individual participants or beneficiaries based on any health factor of the participants or beneficiaries ...

Thus, for example, a plan or issuer may
 but only if the benefit limitation or exclusion
 In addition, a plan or issuer may impose annual, lifetime, or other limits on benefits and may require the satisfaction of a deductible, copayment, coinsurance, or other cost-sharing requirement in order to obtain a benefit if the limit or cost-sharing requirement applies uniformly to all similarly situated individuals and is not directed at individual participants or beneficiaries based on any health factor of the participants or beneficiaries. ...
 (Whether any plan provision or practice with respect to benefits complies with this paragraph (b)(2)(i) does not affect whether the provision or practice is permitted under any other provision of the Act, the Americans with Disabilities Act, or any other law, whether State or federal.)
(C) For purposes of this paragraph (b)(2)(i), a plan amendment applicable to all individuals in one or more groups of similarly situated individuals under the plan and made effective no earlier than the first day of the first plan year after the amendment is adopted is not considered to be directed at any individual participants or beneficiaries."

For the actual text of the regulation click 29 CFR sec. 2590.702
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