U.S Code last checked for updates: May 27, 2024
§ 9801.
Increased portability through limitation on preexisting condition exclusions
(a)
Limitation on preexisting condition exclusion period; crediting for periods of previous coverage
Subject to subsection (d), a group health plan may, with respect to a participant or beneficiary, impose a preexisting condition exclusion only if—
(1)
such exclusion relates to a condition (whether physical or mental), regardless of the cause of the condition, for which medical advice, diagnosis, care, or treatment was recommended or received within the 6-month period ending on the enrollment date;
(2)
such exclusion extends for a period of not more than 12 months (or 18 months in the case of a late enrollee) after the enrollment date; and
(3)
the period of any such preexisting condition exclusion is reduced by the length of the aggregate of the periods of creditable coverage (if any) applicable to the participant or beneficiary as of the enrollment date.
(b)
Definitions
For purposes of this section—
(1)
Preexisting condition exclusion
(A)
In general
(B)
Treatment of genetic information
(2)
Enrollment date
(3)
Late enrollee
The term “late enrollee” means, with respect to coverage under a group health plan, a participant or beneficiary who enrolls under the plan other than during—
(A)
the first period in which the individual is eligible to enroll under the plan, or
(B)
a special enrollment period under subsection (f).
(4)
Waiting period
(c)
Rules relating to crediting previous coverage
(1)
Creditable coverage defined
For purposes of this part, the term “creditable coverage” means, with respect to an individual, coverage of the individual under any of the following:
(A)
A group health plan.
(B)
Health insurance coverage.
(C)
Part A or part B of title XVIII of the Social Security Act.
(D)
Title XIX of the Social Security Act, other than coverage consisting solely of benefits under section 1928.
(E)
Chapter 55 of title 10, United States Code.
(F)
A medical care program of the Indian Health Service or of a tribal organization.
(G)
A State health benefits risk pool.
(H)
A health plan offered under chapter 89 of title 5, United States Code.
(I)
A public health plan (as defined in regulations).
(J)
A health benefit plan under section 5(e) of the Peace Corps Act (22 U.S.C. 2504(e)).
Such term does not include coverage consisting solely of coverage of excepted benefits (as defined in section 9832(c)).
(2)
Not counting periods before significant breaks in coverage
(A)
In general
(B)
Waiting period not treated as a break in coverage
(C)
Affiliation period
(i)
In general
(ii)
Beginning
(iii)
Runs concurrently with waiting periods
(D)
TAA-eligible individuals
In the case of plan years beginning before January 1, 2014
(i)
TAA pre-certification period rule
(ii)
Definitions
(3)
Method of crediting coverage
(A)
Standard method
(B)
Election of alternative method
(C)
Plan notice
In the case of an election with respect to a group health plan under subparagraph (B), the plan shall—
(i)
prominently state in any disclosure statements concerning the plan, and state to each enrollee at the time of enrollment under the plan, that the plan has made such election, and
(ii)
include in such statements a description of the effect of this election.
(4)
Establishment of period
(d)
Exceptions
(1)
Exclusion not applicable to certain newborns
(2)
Exclusion not applicable to certain adopted children
(3)
Exclusion not applicable to pregnancy
(4)
Loss if break in coverage
(e)
Certifications and disclosure of coverage
(1)
Requirement for certification of period of creditable coverage
(A)
In general
A group health plan shall provide the certification described in subparagraph (B)—
(i)
at the time an individual ceases to be covered under the plan or otherwise becomes covered under a COBRA continuation provision,
(ii)
in the case of an individual becoming covered under such a provision, at the time the individual ceases to be covered under such provision, and
(iii)
on the request on behalf of an individual made not later than 24 months after the date of cessation of the coverage described in clause (i) or (ii), whichever is later.
The certification under clause (i) may be provided, to the extent practicable, at a time consistent with notices required under any applicable COBRA continuation provision.
(B)
Certification
The certification described in this subparagraph is a written certification of—
(i)
the period of creditable coverage of the individual under such plan and the coverage under such COBRA continuation provision, and
(ii)
the waiting period (if any) (and affiliation period, if applicable) imposed with respect to the individual for any coverage under such plan.
(C)
Issuer compliance
(2)
Disclosure of information on previous benefits
(A)
In general
In the case of an election described in subsection (c)(3)(B) by a group health plan, if the plan enrolls an individual for coverage under the plan and the individual provides a certification of coverage of the individual under paragraph (1)—
(i)
upon request of such plan, the entity which issued the certification provided by the individual shall promptly disclose to such requesting plan information on coverage of classes and categories of health benefits available under such entity’s plan, and
(ii)
such entity may charge the requesting plan or issuer for the reasonable cost of disclosing such information.
(3)
Regulations
(f)
Special enrollment periods
(1)
Individuals losing other coverage
A group health plan shall permit an employee who is eligible, but not enrolled, for coverage under the terms of the plan (or a dependent of such an employee if the dependent is eligible, but not enrolled, for coverage under such terms) to enroll for coverage under the terms of the plan if each of the following conditions is met:
(A)
The employee or dependent was covered under a group health plan or had health insurance coverage at the time coverage was previously offered to the employee or individual.
(B)
The employee stated in writing at such time that coverage under a group health plan or health insurance coverage was the reason for declining enrollment, but only if the plan sponsor (or the health insurance issuer offering health insurance coverage in connection with the plan) required such a statement at such time and provided the employee with notice of such requirement (and the consequences of such requirement) at such time.
(C)
The employee’s or dependent’s coverage described in subparagraph (A)—
(i)
was under a COBRA continuation provision and the coverage under such provision was exhausted; or
(ii)
was not under such a provision and either the coverage was terminated as a result of loss of eligibility for the coverage (including as a result of legal separation, divorce, death, termination of employment, or reduction in the number of hours of employment) or employer contributions toward such coverage were terminated.
(D)
Under the terms of the plan, the employee requests such enrollment not later than 30 days after the date of exhaustion of coverage described in subparagraph (C)(i) or termination of coverage or employer contribution described in subparagraph (C)(ii).
(2)
For dependent beneficiaries
(A)
In general
If—
(i)
a group health plan makes coverage available with respect to a dependent of an individual,
(ii)
the individual is a participant under the plan (or has met any waiting period applicable to becoming a participant under the plan and is eligible to be enrolled under the plan but for a failure to enroll during a previous enrollment period), and
(iii)
a person becomes such a dependent of the individual through marriage, birth, or adoption or placement for adoption,
the group health plan shall provide for a dependent special enrollment period described in subparagraph (B) during which the person (or, if not otherwise enrolled, the individual) may be enrolled under the plan as a dependent of the individual, and in the case of the birth or adoption of a child, the spouse of the individual may be enrolled as a dependent of the individual if such spouse is otherwise eligible for coverage.
(B)
Dependent special enrollment period
The dependent special enrollment period under this subparagraph shall be a period of not less than 30 days and shall begin on the later of—
(i)
the date dependent coverage is made available, or
(ii)
the date of the marriage, birth, or adoption or placement for adoption (as the case may be) described in subparagraph (A)(iii).
(C)
No waiting period
If an individual seeks coverage of a dependent during the first 30 days of such a dependent special enrollment period, the coverage of the dependent shall become effective—
(i)
in the case of marriage, not later than the first day of the first month beginning after the date the completed request for enrollment is received;
(ii)
in the case of a dependent’s birth, as of the date of such birth; or
(iii)
in the case of a dependent’s adoption or placement for adoption, the date of such adoption or placement for adoption.
(3)
Special rules relating to Medicaid and CHIP
(A)
In general
A group health plan shall permit an employee who is eligible, but not enrolled, for coverage under the terms of the plan (or a dependent of such an employee if the dependent is eligible, but not enrolled, for coverage under such terms) to enroll for coverage under the terms of the plan if either of the following conditions is met:
(i)
Termination of Medicaid or CHIP coverage
(ii)
Eligibility for employment assistance under Medicaid or CHIP
(B)
Employee outreach and disclosure
(i)
Outreach to employees regarding availability of Medicaid and CHIP coverage
(I)
In general
(II)
Option to provide concurrent with provision of plan materials to employee
(ii)
Disclosure about group health plan benefits to States for Medicaid and CHIP eligible individuals
(Added Pub. L. 104–191, title IV, § 401(a), Aug. 21, 1996, 110 Stat. 2073; amended Pub. L. 105–34, title XV, § 1531(b)(1)(A), Aug. 5, 1997,
cite as: 26 USC 9801