ACA Now

Implementation Status

2011

On May 23, 2011, the IRS requested comments on this provision within the broader Notice 2011-36.

2012

CCIIO published temporary guidance on August 31, 2012, regarding this provision in conjunction with Treasury and Labor.

A February 9, 2012, technical release from DOL, coordinated with HHS and Treasury, provides information and FAQs on the 90-day waiting period provisions and other issues.

2013

On March 19, 2013, DOL, Treasury and HHS issued a proposed rule that would implement the 90-day waiting period limitation under this section and make several technical amendments to other regulations. Comments are due by May 20, 2013.

On September 4, DOL, HHS and Treasury issued FAQs clarifying that the ACA’s required Employee Notice of Marketplace Coverage Options need not be distributed by the employer directly. However, if an issuer, multi-employer plan or third-party administrator circulates the notice, employers may have “residual obligations” to assure all employees – including those not enrolled in the plan – receive the statutorily required notice. Separately, the FAQs address the ACA’s 90-day waiting period limitation, noting that employers can “rely on guidance provided in the March 2013 proposed rules at least through 2014” and that “to the extent final regulations are more restrictive on plans or issuers than the proposed regulations, they will not be effective prior to January 1, 2015 and the Departments expect they will give plans and issuers sufficient time to comply.”

2014

On Feb. 20, HHS and DOL released a final rule effectuating the ACA prohibition on waiting periods in excess of 90 days. The Departments also issued a parallel proposal intended to clarify the application of the 90-day maximum allowable waiting period limitation. Specifically, effective for plan years beginning on or after January 1, 2014, (both grandfathered and non-grandfathered) group health plans and group health insurance issuers are precluded from applying any waiting period in excess of 90 days. However, pursuant to the regulations, the Departments indicate that “[t]he 90-day waiting period provisions of these final regulations apply to group health plans and group health insurance issuers for plan years beginning on or after January 1, 2015. For plan years beginning in 2014, the Departments will consider compliance with either the proposed regulations or these final regulations to constitute compliance with PHS Act section 2708.” In parallel proposed rulemaking, the Departments outlined a regulation to further “clarify the maximum allowed length of any reasonable and bona fide employment-based orientation period, consistent with the 90-day waiting period limitation set forth in section 2708 of the [PHSA], as added by the [ACA]…” Also see a DOL press release. Comments on the proposed rule are due April 25, 2014.

Codifying the proposed regulations “without any substantive changes,” DOL, Treasury and HHS specify in a final rule that group plans may have a 1-month employment orientation period prior to the applicability of the ACA 90-day limit on waiting periods before an employee can enroll. The Departments say that “orientation periods are commonplace and the Departments do not intend to call into question the reasonableness of short, bona fide orientation periods.” The regulations apply to group plans on or after Jan. 1, 2015.

On Mar. 16, HHS, DOL and Treasury issued a final rule amending the definition of excepted benefits and establishing two pilot programs through which employers may provide certain limited wraparound coverage to individual plans, including those purchased in Marketplaces. One pilot enables limited wraparound coverage only for ACA Multi-State Plans, while the other permits it for “part-time workers who enroll in an individual health insurance policy or in Basic Health Plan coverage for low-income individuals established under the Affordable Care Act.