Page 471 TITLE 29—LABOR § 1181

such order, from which the participant or beneficiary is

eligible to receive benefits, and with respect to which

the requirements of paragraph (4) are met.’’

Subsec. (a)(2)(B). Pub. L. 105–33, §5612(a), inserted at

end of concluding provisions ‘‘For purposes of this subparagraph, an administrative notice which is issued

pursuant to an administrative process referred to in

subclause (II) of the preceding sentence and which has

the effect of an order described in clause (i) or (ii) of

the preceding sentence shall be treated as such an

order.’’

Subsec. (a)(3)(A). Pub. L. 105–33, §5611(a), inserted at

end ‘‘except that, to the extent provided in the order,

the name and mailing address of an official of a State

or a political subdivision thereof may be substituted

for the mailing address of any such alternate recipient,’’.

Subsec. (a)(3)(B). Pub. L. 105–33, §5613(a)(1), (2), struck

out ‘‘by the plan’’ after ‘‘to be provided’’ and inserted

‘‘and’’ at end.

Subsec. (a)(3)(C). Pub. L. 105–33, §5613(a)(3), substituted a period for ‘‘, and’’ at end.

Subsec. (a)(3)(D). Pub. L. 105–33, §5613(a)(4), struck

out subpar. (D) which read as follows: ‘‘each plan to

which such order applies.’’

Subsec. (a)(9). Pub. L. 105–33, §5611(b), added par. (9).

1996—Subsec. (a)(2)(B). Pub. L. 104–193 substituted

‘‘which—’’ for ‘‘issued by a court of competent jurisdiction which—’’ in introductory provisions, substituted a

comma for a period at end of cl. (ii), and inserted concluding provisions after cl. (ii).

EFFECTIVE DATE OF 1997 AMENDMENT

Section 5611(c) of Pub. L. 105–33 provided that: ‘‘The

amendments made by this section [amending this section] shall apply with respect to medical child support

orders issued on or after the date of the enactment of

this Act [Aug. 5, 1997].’’

Section 5612(b) of Pub. L. 105–33 provided that: ‘‘The

amendment made by this section [amending this section] shall be effective as if included in the enactment

of section 381 of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 (Public Law

104–193; 110 Stat. 2257).’’

Section 5613(c) of Pub. L. 105–33 provided that: ‘‘The

amendments made by this section [amending this section] shall apply with respect to medical child support

orders issued on or after the date of the enactment of

this Act [Aug. 5, 1997].’’

EFFECTIVE DATE OF 1996 AMENDMENT

Section 381(b) of Pub. L. 104–193 provided that:

‘‘(1) IN GENERAL.—The amendments made by this section [amending this section] shall take effect on the

date of the enactment of this Act [Aug. 22, 1996].

‘‘(2) PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY

1, 1997.—Any amendment to a plan required to be made

by an amendment made by this section shall not be required to be made before the 1st plan year beginning on

or after January 1, 1997, if—

‘‘(A) during the period after the date before the

date of the enactment of this Act and before such 1st

plan year, the plan is operated in accordance with the

requirements of the amendments made by this section; and

‘‘(B) such plan amendment applies retroactively to

the period after the date before the date of the enactment of this Act and before such 1st plan year.

A plan shall not be treated as failing to be operated in

accordance with the provisions of the plan merely because it operates in accordance with this paragraph.’’

PLAN AMENDMENTS NOT REQUIRED UNTIL

JANUARY 1, 1994

For provisions setting forth circumstances under

which any amendment to a plan required to be made by

an amendment made by section 4301(d) of Pub. L. 103–66

shall not be required to be made before the first plan

year beginning on or after Jan. 1, 1994, see section

4301(d) of Pub. L. 103–66, set out as an Effective Date of

1993 Amendment note under section 1021 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1132, 1144, 1191b

of this title; title 26 section 9805; title 42 section

300gg–91.

PART 7—GROUP HEALTH PLAN REQUIREMENTS

PART REFERRED TO IN OTHER SECTIONS

This part is referred to in sections 1003, 1021, 1132,

1136, 1162 of this title; title 26 section 4980B.

Subpart A—Requirements Relating to

Portability, Access, and Renewability

§ 1181. 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) of this section, a

group health plan, and a health insurance issuer

offering group health insurance coverage, 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 aggregate of

the periods of creditable coverage (if any, as

defined in subsection (c)(1) of this section) applicable to the participant or beneficiary as of

the enrollment date.

(b) Definitions

For purposes of this part—

(1) Preexisting condition exclusion

(A) In general

The term ‘‘preexisting condition exclusion’’ means, with respect to coverage, a

limitation or exclusion of benefits relating

to a condition based on the fact that the

condition was present before the date of enrollment for such coverage, whether or not

any medical advice, diagnosis, care, or treatment was recommended or received before

such date.

(B) Treatment of genetic information

Genetic information shall not be treated

as a condition described in subsection (a)(1)

of this section in the absence of a diagnosis

of the condition related to such information.

(2) Enrollment date

The term ‘‘enrollment date’’ means, with respect to an individual covered under a group

health plan or health insurance coverage, the

date of enrollment of the individual in the

plan or coverage or, if earlier, the first day of

the waiting period for such enrollment.

(3) Late enrollee

The term ‘‘late enrollee’’ means, with respect to coverage under a group health plan, a
§ 1181 TITLE 29—LABOR Page 472

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) of this section.

(4) Waiting period

The term ‘‘waiting period’’ means, with respect to a group health plan and an individual

who is a potential participant or beneficiary

in the plan, the period that must pass with respect to the individual before the individual is

eligible to be covered for benefits under the

terms of the plan.

(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 [42 U.S.C. 1395c et seq.;

1395j et seq.].

(D) Title XIX of the Social Security Act

[42 U.S.C. 1396 et seq.], other than coverage

consisting solely of benefits under section

1928 [42 U.S.C. 1396s].

(E) Chapter 55 of title 10.

(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.

(I) A public health plan (as defined in regulations).

(J) A health benefit plan under section

2504(e) of title 22.

Such term does not include coverage consisting solely of coverage of excepted benefits (as

defined in section 1191b(c) of this title).

(2) Not counting periods before significant

breaks in coverage

(A) In general

A period of creditable coverage shall not

be counted, with respect to enrollment of an

individual under a group health plan, if,

after such period and before the enrollment

date, there was a 63-day period during all of

which the individual was not covered under

any creditable coverage.

(B) Waiting period not treated as a break in

coverage

For purposes of subparagraph (A) and subsection (d)(4) of this section, any period that

an individual is in a waiting period for any

coverage under a group health plan (or for

group health insurance coverage) or is in an

affiliation period (as defined in subsection

(g)(2) of this section) shall not be taken into

account in determining the continuous period under subparagraph (A).

(3) Method of crediting coverage

(A) Standard method

Except as otherwise provided under subparagraph (B), for purposes of applying subsection (a)(3) of this section, a group health

plan, and a health insurance issuer offering

group health insurance coverage, shall count

a period of creditable coverage without regard to the specific benefits covered during

the period.

(B) Election of alternative method

A group health plan, or a health insurance

issuer offering group health insurance coverage, may elect to apply subsection (a)(3) of

this section based on coverage of benefits

within each of several classes or categories

of benefits specified in regulations rather

than as provided under subparagraph (A).

Such election shall be made on a uniform

basis for all participants and beneficiaries.

Under such election a group health plan or

issuer shall count a period of creditable coverage with respect to any class or category

of benefits if any level of benefits is covered

within such class or category.

(C) Plan notice

In the case of an election with respect to

a group health plan under subparagraph (B)

(whether or not health insurance coverage is

provided in connection with such plan), 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

Periods of creditable coverage with respect

to an individual shall be established through

presentation of certifications described in subsection (e) of this section or in such other

manner as may be specified in regulations.

(d) Exceptions

(1) Exclusion not applicable to certain newborns

Subject to paragraph (4), a group health

plan, and a health insurance issuer offering

group health insurance coverage, may not impose any preexisting condition exclusion in

the case of an individual who, as of the last

day of the 30-day period beginning with the

date of birth, is covered under creditable coverage.

(2) Exclusion not applicable to certain adopted

children

Subject to paragraph (4), a group health

plan, and a health insurance issuer offering

group health insurance coverage, may not impose any preexisting condition exclusion in

the case of a child who is adopted or placed for

adoption before attaining 18 years of age and

who, as of the last day of the 30-day period beginning on the date of the adoption or placement for adoption, is covered under creditable

coverage. The previous sentence shall not

apply to coverage before the date of such adoption or placement for adoption.

(3) Exclusion not applicable to pregnancy

A group health plan, and health insurance

issuer offering group health insurance cov-
Page 473 TITLE 29—LABOR § 1181

erage, may not impose any preexisting condition exclusion relating to pregnancy as a preexisting condition.

(4) Loss if break in coverage

Paragraphs (1) and (2) shall no longer apply

to an individual after the end of the first 63-

day period during all of which the individual

was not covered under any creditable coverage.

(e) Certifications and disclosure of coverage

(1) Requirement for certification of period of

creditable coverage

(A) In general

A group health plan, and a health insurance issuer offering group health insurance

coverage, 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 (if any) 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

To the extent that medical care under a

group health plan consists of group health

insurance coverage, the plan is deemed to

have satisfied the certification requirement

under this paragraph if the health insurance

issuer offering the coverage provides for

such certification in accordance with this

paragraph.

(2) Disclosure of information on previous benefits

In the case of an election described in subsection (c)(3)(B) of this section by a group

health plan or health insurance issuer, if the

plan or issuer enrolls an individual for coverage under the plan and the individual provides a certification of coverage of the individual under paragraph (1)—

(A) upon request of such plan or issuer, the

entity which issued the certification provided by the individual shall promptly disclose to such requesting plan or issuer information on coverage of classes and categories

of health benefits available under such entity’s plan or coverage, and

(B) such entity may charge the requesting

plan or issuer for the reasonable cost of disclosing such information.

(3) Regulations

The Secretary shall establish rules to prevent an entity’s failure to provide information

under paragraph (1) or (2) with respect to previous coverage of an individual from adversely

affecting any subsequent coverage of the individual under another group health plan or

health insurance coverage.

(f) Special enrollment periods

(1) Individuals losing other coverage

A group health plan, and a health insurance

issuer offering group health insurance coverage in connection with 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 dependent.

(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 issuer (if applicable) 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
§ 1181 TITLE 29—LABOR Page 474

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

A 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 to enroll 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.

(g) Use of affiliation period by HMOs as alternative to preexisting condition exclusion

(1) In general

In the case of a group health plan that offers

medical care through health insurance coverage offered by a health maintenance organization, the plan may provide for an affiliation

period with respect to coverage through the

organization only if—

(A) no preexisting condition exclusion is

imposed with respect to coverage through

the organization,

(B) the period is applied uniformly without

regard to any health status-related factors,

and

(C) such period does not exceed 2 months

(or 3 months in the case of a late enrollee).

(2) Affiliation period

(A) Defined

For purposes of this part, the term ‘‘affiliation period’’ means a period which, under

the terms of the health insurance coverage

offered by the health maintenance organization, must expire before the health insurance coverage becomes effective. The organization is not required to provide health care

services or benefits during such period and

no premium shall be charged to the participant or beneficiary for any coverage during

the period.

(B) Beginning

Such period shall begin on the enrollment

date.

(C) Runs concurrently with waiting periods

An affiliation period under a plan shall run

concurrently with any waiting period under

the plan.

(3) Alternative methods

A health maintenance organization described in paragraph (1) may use alternative

methods, from those described in such paragraph, to address adverse selection as approved by the State insurance commissioner

or official or officials designated by the State

to enforce the requirements of part A of title

XXVII of the Public Health Service Act [42

U.S.C. 300gg et seq.] for the State involved

with respect to such issuer.

(Pub. L. 93–406, title I, §701, as added Pub. L.

104–191, title I, §101(a), Aug. 21, 1996, 110 Stat.

1939; amended Pub. L. 104–204, title VI,

§603(b)(3)(H), Sept. 26, 1996, 110 Stat. 2938.)

REFERENCES IN TEXT

The Social Security Act, referred to in subsec.

(c)(1)(C), (D), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as

amended. Parts A and B of title XVIII of the Act are

classified generally to parts A (§1395c et seq.) and B

(§1395j et seq.) of subchapter XVIII of chapter 7 of Title

42, The Public Health and Welfare. Title XIX of the Act

is classified generally to subchapter XIX (§1396 et seq.)

of chapter 7 of Title 42. For complete classification of

this Act to the Code, see section 1305 of Title 42 and

Tables.

The Public Health Service Act, referred to in subsec.

(g)(3), is act July 1, 1944, ch. 373, 58 Stat. 682, as amended. Part A of title XXVII of the Act is classified generally to part A (§300gg et seq.) of subchapter XXV of

chapter 6A of Title 42. For complete classification of

this Act to the Code, see Short Title note set out under

section 201 of Title 42 and Tables.

AMENDMENTS

1996—Subsec. (c)(1). Pub. L. 104–204 made technical

amendment to reference in original act which appears

in text as reference to section 1191b of this title.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104–204 applicable with respect to group health plans for plan years beginning on

and after Jan. 1, 1998, see section 603(c) of Pub. L.

104–204, set out as a note under section 1003 of this title.

EFFECTIVE DATE

Section 101(g) of Pub. L. 104–191 provided that:

‘‘(1) IN GENERAL.—Except as provided in this section,

this section [enacting this part and amending sections

1003, 1021, 1022, 1024, 1132, 1136, and 1144 of this title]

(and the amendments made by this section) shall apply

with respect to group health plans for plan years beginning after June 30, 1997.

‘‘(2) DETERMINATION OF CREDITABLE COVERAGE.—

‘‘(A) PERIOD OF COVERAGE.—

‘‘(i) IN GENERAL.—Subject to clause (ii), no period

before July 1, 1996, shall be taken into account

under part 7 of subtitle B of title I of the Employee

Retirement Income Security Act of 1974 (as added

by this section) [this part] in determining creditable coverage.
Page 475 TITLE 29—LABOR § 1182

‘‘(ii) SPECIAL RULE FOR CERTAIN PERIODS.—The

Secretary of Labor, consistent with section 104 [42

U.S.C. 300gg–92 note], shall provide for a process

whereby individuals who need to establish creditable coverage for periods before July 1, 1996, and

who would have such coverage credited but for

clause (i) may be given credit for creditable coverage for such periods through the presentation of

documents or other means.

‘‘(B) CERTIFICATIONS, ETC.—

‘‘(i) IN GENERAL.—Subject to clauses (ii) and (iii),

subsection (e) of section 701 of the Employee Retirement Income Security Act of 1974 [29 U.S.C.

1181(e)](as added by this section) shall apply to

events occurring after June 30, 1996.

‘‘(ii) NO CERTIFICATION REQUIRED TO BE PROVIDED

BEFORE JUNE 1, 1997.—In no case is a certification required to be provided under such subsection before

June 1, 1997.

‘‘(iii) CERTIFICATION ONLY ON WRITTEN REQUEST

FOR EVENTS OCCURRING BEFORE OCTOBER 1, 1996.—In

the case of an event occurring after June 30, 1996,

and before October 1, 1996, a certification is not required to be provided under such subsection unless

an individual (with respect to whom the certification is otherwise required to be made) requests

such certification in writing.

‘‘(C) TRANSITIONAL RULE.—In the case of an individual who seeks to establish creditable coverage for any

period for which certification is not required because

it relates to an event occurring before June 30, 1996—

‘‘(i) the individual may present other credible evidence of such coverage in order to establish the period of creditable coverage; and

‘‘(ii) a group health plan and a health insurance

issuer shall not be subject to any penalty or enforcement action with respect to the plan’s or issuer’s crediting (or not crediting) such coverage if the

plan or issuer has sought to comply in good faith

with the applicable requirements under the amendments made by this section [enacting this part and

amending sections 1003, 1021, 1022, 1024, 1132, 1136,

and 1144 of this title].

‘‘(3) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS.—Except as provided in paragraph (2), in the

case of a group health plan maintained pursuant to one

or more collective bargaining agreements between employee representatives and one or more employers ratified before the date of the enactment of this Act [Aug.

21, 1996], part 7 of subtitle B of title I of Employee Retirement Income Security Act of 1974 [this part] (other

than section 701(e) thereof [29 U.S.C. 1181(e)]) shall not

apply to plan years beginning before the later of—

‘‘(A) the date on which the last of the collective

bargaining agreements relating to the plan terminates (determined without regard to any extension

thereof agreed to after the date of the enactment of

this Act), or

‘‘(B) July 1, 1997.

For purposes of subparagraph (A), any plan amendment

made pursuant to a collective bargaining agreement relating to the plan which amends the plan solely to conform to any requirement of such part shall not be

treated as a termination of such collective bargaining

agreement.

‘‘(4) TIMELY REGULATIONS.—The Secretary of Labor,

consistent with section 104 [42 U.S.C. 300gg–92 note],

shall first issue by not later than April 1, 1997, such regulations as may be necessary to carry out the amendments made by this section.

‘‘(5) LIMITATION ON ACTIONS.—No enforcement action

shall be taken, pursuant to the amendments made by

this section, against a group health plan or health insurance issuer with respect to a violation of a requirement imposed by such amendments before January 1,

1998, or, if later, the date of issuance of regulations referred to in paragraph (4), if the plan or issuer has

sought to comply in good faith with such requirements.’’

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1182, 1191 of this

title.

§ 1182. Prohibiting discrimination against individual participants and beneficiaries based

on health status

(a) In eligibility to enroll

(1) In general

Subject to paragraph (2), a group health

plan, and a health insurance issuer offering

group health insurance coverage in connection

with a group health plan, may not establish

rules for eligibility (including continued eligibility) of any individual to enroll under the

terms of the plan based on any of the following health status-related factors in relation to

the individual or a dependent of the individual:

(A) Health status.

(B) Medical condition (including both

physical and mental illnesses).

(C) Claims experience.

(D) Receipt of health care.

(E) Medical history.

(F) Genetic information.

(G) Evidence of insurability (including

conditions arising out of acts of domestic

violence).

(H) Disability.

(2) No application to benefits or exclusions

To the extent consistent with section 1181 of

this title, paragraph (1) shall not be construed—

(A) to require a group health plan, or

group health insurance coverage, to provide

particular benefits other than those provided under the terms of such plan or coverage, or

(B) to prevent such a plan or coverage

from establishing limitations or restrictions

on the amount, level, extent, or nature of

the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.

(3) Construction

For purposes of paragraph (1), rules for eligibility to enroll under a plan include rules defining any applicable waiting periods for such

enrollment.

(b) In premium contributions

(1) In general

A group health plan, and a health insurance

issuer offering health insurance coverage in

connection with a group health plan, may not

require any individual (as a condition of enrollment or continued enrollment under the

plan) to pay a premium or contribution which

is greater than such premium or contribution

for a similarly situated individual enrolled in

the plan on the basis of any health status-related factor in relation to the individual or to

an individual enrolled under the plan as a dependent of the individual.

(2) Construction

Nothing in paragraph (1) shall be construed—