HIPAA and a gap in coverage - help me decipher the law?
January 22, 2008 2:27 PM   Subscribe

YANMLFilter: You're not my lawyer, but I'm going to ask you for help deciphering part of the HIPAA anyway. Specifically, the bits regarding pre-existing conditions.

The Background:
I had (and was treated for) testicular cancer back in August. So, congratulations to me, I'm in danger of being denied coverage for a pre-existing condition if something wonky happens with my health insurance.

I should be pretty healthy according to the tests I've had since, but of course there's a few more follow-up CT scans and other tests to be done, just to be certain nothing has spread (and to kill it if it has). My employer, however, has closed it doors, and my health insurance ends on the 31st of this month.

I start my new job on the 28th. Assuming the common 90-day wait before I can get in on the new employer's group plan, that means I'll be without insurance for about 80 days. HIPAA says my new insurer can deny coverage for pre-existing conditions if there's a gap greater than 63 days.

The Question:
But! According to USC 1181(c)(2)(b), that waiting period should not be considered to be a "break in coverage." If I'm right, this means I wouldn't have any gap in coverage (since the waiting period would begin before my current insurance runs out), and thus I could not be denied coverage for pre-existing conditions.

Am I interpreting that correctly? Should I talk to a lawyer, and if so, what kind of lawyer? Any recommendations in the central NJ area?

Thanks in advance, everyone!
posted by CrayDrygu to Health & Fitness (18 answers total) 1 user marked this as a favorite
Wouldn't HR (at your new employer) be able to answer this? If not, HIPAA toll-free number: (866) 627-7748.
posted by joannemerriam at 2:44 PM on January 22, 2008

My employer, however, has closed it doors, and my health insurance ends on the 31st of this month.

So no option for COBRA?
posted by scody at 2:48 PM on January 22, 2008

Assuming the common 90-day wait before I can get in on the new employer's group plan,

Oh, and also: don't freak yourself out assuming this till you know it to be true. Some employers have a 60-day gap. Some even insure from Day 1 of employment (unusual, but not unheard of).
posted by scody at 2:49 PM on January 22, 2008

grr, should be "60-day wait."
posted by scody at 2:50 PM on January 22, 2008

scody: "So no option for COBRA?"

Nope. You can only get COBRA if the group plan still exists, and since my employer is gone, there's no group left to have a plan. If COBRA were an option, believe me, I would jump on it without a second thought.

Also, based on my own research and a previously-asked question here, there's no such thing as short-term health insurance in NJ. (And to pre-emptively address this one, I can't be covered under my parents' plan, as they do not live in NJ.)

also scody: "Some employers have a 60-day gap. Some even insure from Day 1 of employment..."

True. And I forgot to mention it, but I do plan on talking to HR at the new company about it as well, perhaps even offering to pay the full premium myself for 30/60/90 days if it means I can get into the group earlier. But I don't want to ask any such questions until I'm fully in the door there. I'd still like answers that assume a 90-day gap, though, even if it ends up doing nothing more than fulfilling a curiosity.

joannemerriam: Thank you for that phone number! I'll probably give them a call tomorrow.
posted by CrayDrygu at 3:00 PM on January 22, 2008

That's ERISA dude, not HIPAA. I do a lot of Healthcare law and that implicates HIPAA, but even I don't touch ERISA with a ten foot pole.

29 USC 1181 = ERISA
42 USC 201 et seq. = HIPAA

I can provide you that information. But I'm not going to render you an opinion. ERISA is a mess for a number of reasons. If you want to speak to a lawyer, look for an ERISA lawyer in your area (there will be someone; probably an employment lawyer). For something of this importance, a hundred bucks or so seems a worthwhile investment. Or, you can due the free thing and, after having read the statute and doing some independent internet research on ERISA and gaps of coverage, talk to your new HR person or rep at your new healthcare to confirm your understanding.

And remember this: protection of this sort is the reason for ERISA.
posted by dios at 3:03 PM on January 22, 2008

dios: "That's ERISA dude, not HIPAA."

Thanks for the clarification; I got the reference from an article about HIPAA, which talked about "creditable coverage" and "significant breaks," and referred to 29 USC for those definitions. I made the assumption based on that. Still, this seems to be the bit of law that would apply here.
posted by CrayDrygu at 3:11 PM on January 22, 2008

I don't want to ask any such questions until I'm fully in the door there

Call HR, don't give your name, and ask how long new hires need to wait for coverage. Some companies will happily tell you this information. Have a friend call from their own phone if you want to be doubly sure they won't connect this with you.
posted by yohko at 3:17 PM on January 22, 2008

yohko: There are only a handful of people who make up the new company, and I am the only new hire right now. So, being anonymous is kinda impossible. I'm quite certain I'll figure out the health insurance scenario there within my first 1-2 days, but I wanted to get a jump on things.
posted by CrayDrygu at 3:24 PM on January 22, 2008

On re-reading my statement, I should have been clearer. When your question asked about HIPAA, I was expecting a certain kind of question. When I read inside, I saw the specific question you were asking. To clarify: globally this question is effectively an ERISA question which was a statute that was passed to protect employees in situations such as this. HIPAA is a later statute and it does contain some provisions that amended ERISA and specifically in the area you are addressing. I do not want to correct that you HIPAA is not an issue here, it is.

What my statement was going to was more of what kind of attorney you would be looking for: a health law attorney would be who you call for a HIPAA question; an employment attorney would be who you call for an ERISA question. This is basically an ERISA question that deal with a provision of a HIPAA regarding portability of group health plans. So my point was that you should look for an ERISA attorney.

And this brings me back to my point that this whole area of law is a mess, for the most part. The implementing regs are a morass; try reading the CFR on these areas. The one thing that you should take from reading about it is this: that these statutes were intended to protect the very thing you are worried about. So, while I can't give you advice, think about what you are reading and what you think those crazy DC people were trying to do when they wrote what you are reading.

Call a lawyer if you are really concerned. Or, read some and just talk to your health plan representative. Or, you can call the department of labor hotlines and ask them.
posted by dios at 3:32 PM on January 22, 2008

I just jumped on the DOL page and was going to provide you with this if you haven't seen it. I would point out that they do have telephone numbers of people you can call who will answer questions for you. I know it seems odd to call the federal government and ask them this question, but it is your tax dollars at work and is an option if you do not want to contact an attorney to discuss the specific plan you are enrolling in.
posted by dios at 3:36 PM on January 22, 2008

Some even insure from Day 1 of employment (unusual, but not unheard of).

Pretty much every company I've ever worked for has done either this, or insured starting on the first day of your first full month of employment. So I'm surprised that it's unusual.
posted by kindall at 3:57 PM on January 22, 2008

You're correct that the waiting period does not count toward the break in credible coverage. However, to allay your fears, get a copy of the new employer's summary plan description which describes your health coverage. Most group plans don't have pre-existing condition clauses, so you may be surprised to find that your plan does not have one. You may also find this FAQ a lot easier to read than the U.S. Code.

Try here: http://www.dol.gov/ebsa/faqs/faq_consumer_hipaa.html

You can also contact your regional office of the department of labor and they should be able to answer any questions you have. Here's there info:


You don't need a lawyer. Good luck.
posted by bananafish at 4:47 PM on January 22, 2008

I have always asked my future employers about health insurance prior to starting work. It's not at all unusual. If I were you, I wouldn't hesitate to call and ask when the insurance starts. There's no reason they wouldn't want you to know; lots of people, perfectly healthy people with no reason to worry, need this sort of information so that they can figure out when to cancel previous insurance coverage. I don't think they'll think anything of it. You don't need to tell them that you've had cancer or anything about your medical history in order to have a legitimate question about your benefits.
posted by decathecting at 4:52 PM on January 22, 2008

Try going to eHealthInsurance.com (not a plug, but really, do it) and getting a short term emergency policy. Seriously. I got a policy for $60/month when I was faced with a coverage gap last year.
posted by fusinski at 5:10 PM on January 22, 2008

Sorry about the cancer.

I was going to point out to you and dios that this is ERISA Part 7, also known as the HIPAA portability provisions, affectionately known as 701 or “oh-one,” but he corrected himself and wisely referred you to the DOL site for the Employee Benefits Security Administration, Office of Health Plan Standards and Compliance Assistance. I used to be an attorney in this office in DC (I now work for a major health system in a different city).

Assuming HIPAA is applicable to your health plan, which it probably is (the applicability of Part 7 is much broader than other parts of ERISA, due to parallel provisions in the Public Health Service Act, among other things; similarly, the preemption provisions are far less confusing and much narrower, so that HIPAA portability provisions are rarely preempted by state law), you should not be subject to any preex provisions. Your analysis is correct: time spent in a waiting period does not count against you as a break in coverage.

One word of caution, though, if something happens and you end up enrolling in the plan or another plan within 63 days of your previous coverage ending (you quit, are fired, you forget to enroll, you can’t afford the premiums, etc) the time you spent in the waiting period also does not count for you as creditable coverage. In other words, if you don’t get COBRA (I think you mentioned the old plan will cease to exist, sorry!) or some other coverage during that time, not only are you going uninsured for that period (which is dangerous, especially for someone with health issues), if for some reason you don’t become part of the plan on April 28 as scheduled, you will then have experienced a 90 day break, more than the 63 days grace that HIPAA gives you and future employers could preex you for any medical treatment you sought during the six months prior to enrolling in the plan. I mention this to urge you to look into some kind of coverage for the gap.

I know it seems odd to call the federal government and ask them this question, but it is your tax dollars at work and is an option if you do not want to contact an attorney to discuss the specific plan you are enrolling in.

True. This was exactly my job when I worked there. It was actually pretty rewarding to give free and helpful legal advice to people like you that called (at least when the law was on their side!). Plus, I will do you one better: and a good percentage of the calls I answered were from private practice attorneys (or health plans, employers) asking for legal guidance, especially when the regs first came out (Ok, so I was one of the crazy DC people who wrote the regs, sorry for the CFR, dios). A competent employment lawyer would be able to help you, but DOL is simple, free, and they have checklists and other materials in easy, digestible language that answer this very question and much more. They can explain all of the above in a more interactive way, and answer any specifics you may have. There are Regional Offices (ROs) and a National Office, where I worked. The National Office folks are all attorneys, and my bias would be to call them if you need further clarification, but the Philly RO can certainly help you. The ROs also deal with the rest of ERISA, if you have questions about your retirement plan, etc. Anyway, if you need further help, call either the Philly RO or the National Office. They are my friends and they are great. Gubmint. Go figure.

On preview, bananafish is right—some of the materials are online. You don’t need a lawyer, but call EBSA if you want some more reassurance. Good luck.
posted by Pax at 5:13 PM on January 22, 2008

Doh, sorry, I meant "if something happens and you end up NOT enrolling in the plan or another plan within 63 days of your previous coverage ending..."
posted by Pax at 5:14 PM on January 22, 2008

Possible simple solution. Pick up phone and call the hiring manager. Say "Hi, it's CrayDrygu. I'm wrapping things up with my former employer and wanted to clarify one piece of my benefits. Could you let me know what type of waiting period is involved with your health benefits?"

As a hiring manager I wouldn't even blink at this question from a candidate.
posted by Octoparrot at 6:01 PM on January 22, 2008

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