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August 27, 2010 

By Mail

U.S. Department of Labor 

Office of Health Plan Standards 

 and Compliance Assistance 

Employee Benefits Security Administration 

Room N-5653 

Attn: RIN1210-AB43 

200 Constitution Avenue NW 

Washington, DC 20210 

Office of Consumer Information and Insurance Oversight 

Department of Health and Human Services 

Attn: OCIIO-9994-IFC 

P.O. Box 8016 

Baltimore, MD 21244-1850 

Internal Revenue Service 

CC:PA:LPD:PR (Reg-120399-10) 

Room 5205 

P.O. Box 7604 

Ben Franklin Station 

Washington DC 20004 

To whom it may concern: 

The American Cancer Society Cancer Action Network (“ACS CAN”) is the advocacy 

affiliate of the American Cancer Society (the “Society”). The Society is a nationwide, 

community-based, voluntary health organization dedicated to eliminating cancer as 

a major health problem by preventing cancer, saving lives, and diminishing suffering 

from cancer, through research, education, advocacy, and service. The American 

Cancer Society, operating through its national office and 13 chartered, geographic 

division affiliates throughout the United States is the largest voluntary health 

organization in the United States. 

 

ACS CAN appreciates the opportunity to provide comments to the U.S. Department 

of Labor, the Department of Health and Human Services and the Internal Revenue 

Service (the “Departments”) on the Interim Final Rules (the “Interim Rules”) 

published in the Federal Register on June 28, 2010. These rules implement 
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provisions of the Patient Protection and Affordable Care Act (the “PPACA”) relating 

to preexisting condition exclusions for children, lifetime and annual dollar limits on 

benefits, rescissions and patient protections. 

ACS CAN is very pleased that the Interim Rules reflect a thoughtful and thorough 

implementation of key aspects of the PPACA. In general, we believe the Interim 

Rules are consistent with the broader policy objectives of the PPACA. Our 

comments are limited to several specific concerns relating to the structure of the 

rules on lifetime and annual limits. 

Waiver of Restricted Annual Limits. The Interim Rules appropriately 

recognize the realities of the insurance marketplace by authorizing a program for the 

waiver of the restricted annual limits in circumstances where the application of the 

limits would result in a significant decrease in access to benefits or increase in 

premiums. However, we are concerned that the waiver program not be 

implemented in a way that provides an opportunity for plans and issuers to effect an 

end run around the restricted annual limits. This opportunity is particularly apparent 

in certain segments of the individual market, such as the limited benefit plans 

market, where consumers often face severely restrictive annual limits yet pay 

disproportionately high premiums for limited coverage. Accordingly, ACS CAN 

recommends that the authority to waive the restricted annual limits not result in a 

level that would be insufficient to provide adequate treatment for chronic conditions 

that are both common and costly to treat on an annual basis, such as cancer, heart 

disease or diabetes. 

Non-Monetary Limits. ACS CAN recommends that the Interim Rules be 

revised to include an anti–abuse rule to prevent the use of non-monetary limits on 

plans benefits as a proxy for otherwise prohibited annual dollar limits on coverage. 

Although not specifically addressed by the Interim Rules, it is clear that insurers and 

employers may apply non-monetary limits to specific benefits, such as a limit on 

incidences of treatment or the number of days of care. For patients with chronic 

illnesses that require a high annual level of health care utilization, the imposition of 

annual non-monetary limits is as effective as the imposition of annual monetary 

limits in reducing the adequacy of their coverage. Accordingly, ACS CAN 

recommends that, for the period in which restricted annual limits are in effect, a plan 

or policy’s non-monetary limits applicable to essential health benefits should not be 

allowed to be lower than at the levels in effect on March 23, 2010, absent an 

express waiver from HHS. The waiver process applicable to non-monetary limits 

could easily be incorporated into the process already contemplated by the Interim 

Rules. 

Definition of “Essential Health Benefits”. The definition of “essential 

health benefits” is crucial to the implementation of the rules relating to lifetime and 

annual limits. However, the Interim Rules defer a comprehensive definition of 

“essential health benefits” to the issuance of future guidance under PPACA 
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§1302(b), relying for an interim period on a cross-reference to the very general 

categories identified in the statute as essential health benefits. Prior to the issuance 

of guidance under PPACA §1302(b), the Interim Rules allow a plan or issuer to rely 

on a “good faith” reasonable interpretation of the term “essential health benefits”. 

ACS CAN believes that consumers will be significantly disadvantaged if plans and 

issuers are provided with the latitude to interpret the scope of the Interim Rules 

independent of comprehensive guidance. If this approach prevails, it is likely that 

consumers will be subject to disparate, and potentially adverse, treatment as plans 

and issuers reach different conclusions regarding which benefits are or are not 

essential. The statutory guidelines under PPACA §1302(b) are simply too general to 

provide plans and issuers with a basis for consistent interpretation of the term 

“essential health benefits.” 

 Pending the issuance of comprehensive guidance under PPACA §1302(b), 

ACS CAN recommends that any benefit provided under a plan or policy in effect as 

of March 23, 2010 be treated as an “essential health benefit” for purposes of 

applying the Interim Rules. Absent a bright-line test, it will be very difficult for both 

issuers and consumers to identify essential benefits with certainty, and the 

possibility that the Interim Rules will be applied incorrectly or with manipulative intent 

will be magnified. If the Departments decline to adopt a bright line test, ACS CAN 

recommends that the Interim Rule be revised to require plans and issuers to provide 

consumers with a comprehensive annual disclosure notice that identifies both the 

plan or policy’s essential health benefits and those benefits which the plan or issuers 

has determined are not essential and are subject to separate lifetime and/or annual 

limits. The disclosure notice should also be required to clearly state any change in 

the classification of a benefit as essential or non-essential as well as identify any 

non-monetary limits on any benefit(s) during the plan or policy year. 

Reinstatement Rights under an Individual Policy. ACS CAN requests that 

the Departments clarify the application of the Interim Rules to an individual seeking 

reinstatement under an individual policy where the individual had previously reached 

a lifetime limit on benefits. Under the Interim Rules, a participant in a group health 

plan is eligible for reenrollment if they had reached the plan’s lifetime limit prior to 

the effective date of the Interim Rules even if they are no longer enrolled in the plan 

and no family member is currently enrolled in the plan. We are not clear as to why a 

similar rule is not applicable to a policy in the individual market. Instead, the 

preamble to the Interim Rules states at p. 37191 that “...this reinstatement 

opportunity does not apply to individuals who reached their lifetime limits on 

individual health insurance coverage if the contract is not renewed or otherwise 

is no longer in effect.” (emphasis added) It is contrary to logic for a consumer to 

continue to renew an individual policy if they have reached a lifetime limit on 

benefits. Accordingly, if the referenced limit for individual policies is the overall limit 

on policy benefits, it is unlikely that any consumer will be able to take advantage of 

the reinstatement opportunity because such policies will no longer be in effect. 

Although the data in this area is sparse, it is likely that the highest incidence of 
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consumers who have reached a lifetime limit will be found in the individual market 

and, particularly, among purchasers of limited benefits policies. Yet, as drafted, the 

reinstatement opportunity for this group under the Interim Rules will be very limited. 

ACS CAN recommends that the reinstatement rule for individual policies be revised 

to create greater parity between the group and individual markets. This parity could 

be achieved by providing that an individual who did not renew or otherwise continue 

an individual policy should be eligible for reinstatement under the policy or any 

substantially similar policy then offered by the issuer if the subscriber or any insured 

under the policy reached a lifetime benefit limit and, thereafter, such policy was not 

renewed or otherwise continued during the plan year period ending September 23, 

2010. 

* * * * * 

 The elimination of lifetime and annual benefit limits is a cornerstone of 

PPACA reforms, enhancing the benefit security of millions of Americans who would 

otherwise be denied the opportunity to receive quality, affordable healthcare. We 

hope the Departments will consider our recommendations to help ensure that this 

significant reform is implemented on a consistent basis with the policy objectives of 

the PPACA. 

Sincerely, 

Chris Hansen 

President