HHS Issues Procedures and Requirements for HIPAA Exemption Election for Self-Funded Non-Federal Governmental Plans

The Department of Health and Human Services’ Center for Consumer Information & Insurance Oversight (CCIIO) has posted guidance and model forms for plan sponsors of self-funded, non-federal governmental health plans to use in exempting their plans from certain requirements of the Public Health Service (PHS) Act. Prior to the enactment of the new health care reform law, sponsors of self-funded, non-federal governmental plans were permitted to opt out of seven PHS Act requirement categories. As discussed in a CCIIO memorandum, (pdf) as a result of the Affordable Care Act’s changes, these plan sponsors may now opt out of the following categories only:

• Standards relating to benefits for newborns and mothers.
• Parity in the application of certain limits to mental health and substance use disorder benefits (including requirements of the Mental Health Parity and Addiction Equity Act of 2008).
• Required coverage for reconstructive surgery following mastectomies.
• Coverage of dependent students on a medically necessary leave of absence.

The recent guidance issued by the CCIIO lays out the procedures and requirements that plan sponsors must follow in order to apply for these exemptions, which are not automatic. If the sponsor of a self-funded, non-federal governmental plan wishes to exempt its plan from one or more of the four requirements listed above, it must notify the CCIIO in writing. The guidance includes a link to a model exemption election form. (pdf) This request may be sent in writing to: Centers for Medicare & Medicaid Services (CMS), Center for Consumer Information and Insurance Oversight (CCIIO), ATTN: HIPAA Opt-Out, 200 Independence Avenue, SW, Room 737F, Washington, DC 20201, or via facsimile to 301-492-4462.

The guidance states that the sponsor must provide notice that it is seeking this election and explain the consequences of the election to enrollees annually and at the time of enrollment. The guidance emphasizes that the annual notice to plan enrollees generally must be sent before the plan year begins for a plan's initial exemption election. The notice must also state if the plan sponsor is seeking an exemption from a category from which the plan was not exempt the prior year. A model notice to enrollees (pdf) is included in the guidance. An election applies for a single specified plan year, or, in the case of a plan provided pursuant to a collective bargaining agreement, for all plan years encompassed by the agreement. A plan sponsor may renew an opt-out election for a subsequent plan year (or period of plan coverage) by notifying CMS in writing.