August 27, 2010 

Office of Consumer Information and Insurance Oversight 

Department of Health and Human Services 

Attention: OCIIO-9994-IFC, RIN 0991-AB69 

P.O. Box 8016 

Baltimore, Maryland 21244-1850 

Office of Health Plan Standards and Compliance Assistance 

Employee Benefits Security Administration, Room N-5653 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Washington, DC 20210 

Attention: RIN1210-AB43 

Internal Revenue Service 

CC: PA: LPD: PR, Room 5025 

P.O. Box 7604, Ben Franklin Station 

Washington, DC 20044 

Attention: REG-120399-10 

Re: CCD Comments on Interim Final Rules for Preexisting Condition Exclusions, 

Lifetime and Annual Limits, Rescissions, and Patient Protections (File Codes 

OCIIO-9994-IFC, RIN 0991-AB69/ RIN 1210–AB43/REG–120399-10)

Dear Sir or Madam: 

The Consortium for Citizens with Disabilities (CCD) appreciates the opportunity to comment on 

interim final rules that implement provisions of the Patient Protection and Affordable Care Act 

(Affordable Care Act or ACA) regarding preexisting condition exclusions, lifetime and annual 

limits, rescissions, and patient protections. We applaud the issuance of these interim final rules 

by the Departments of Health and Human Services, Labor, and Treasury (collectively, the 

Departments), because their promulgation is an important step forward in protecting consumers 

against some of the most harmful practices within the private insurance market. We provide the 

following comments so that the Departments can strengthen the interim final rules. 

1 
CCD is a coalition of approximately 100 national disability organizations working together to 

advocate for national public policy that ensures the self determination, independence, 

empowerment, integration and inclusion of children and adults with disabilities in all aspects of 

society. Since 1973, the CCD has advocated on behalf of people of all ages with physical and 

mental disabilities and their families. CCD has worked to achieve federal legislation and 

regulations that assure that the 54 million children and adults with disabilities are fully integrated 

into the mainstream of society. 

Prohibition of Preexisting Condition Exclusions 

We strongly support interim final rules prohibiting preexisting condition exclusions.1

 These rules 

are, in a very real sense, the missing link of the Americans with Disabilities Act of 1990 (ADA), 

as they begin to implement the ACA’s prohibition against discrimination based on health or 

disability status.2

 The ADA did little in the way of private insurance regulation and this was the 

great unfinished business for the disability community over the past twenty years. Although the 

interim final rules are important protections, we think the interim final rules could be improved 

in the following ways: 

 We believe the definition of preexisting condition exclusions should be broadened to 

include additional forms of discrimination. We make the following recommendations.

o Arbitrary restrictions on benefits, particularly in the area of rehabilitation and 

habilitation services and devices, should be considered a form of preexisting 

condition exclusion. In fact, coverage exclusions of, or arbitrary restrictions on, 

any benefits that are identified in the ACA statute as “essential health benefits”—

as rehabilitation and habilitation services and devices are—should be considered a 

de facto preexisting condition exclusion and receive the same protections under 

the interim final rules. 

o The interim final rules do not provide necessary patient protections against new 

condition-based exclusions by health plans and health insurance issuers between 

now and 2014, when adults are protected against preexisting condition exclusions. 

For instance, to preemptively thwart the new rules on preexisting condition 

exclusions, health plans and health insurance issuers could simply eliminate 

coverage for certain benefits altogether. This could be viewed as a permissible 

condition-based exclusion of benefits, but would have the same effect as imposing 

a preexisting condition exclusion. Considering that Congress intended to ensure 

full access to coverage for individuals with preexisting conditions, CCD urges the 

Departments to take steps to protect patients against health plans and health 

insurance issuers that impose new condition-based exclusions. CCD suggests that 

until 2014, the interim final rules should require health plans and health insurance 

 

1

 The interim final rules are set forth at 26 CFR 54.9815-2704T, 29 CFR 2590.715-2704, 45 CFR 147.108. 

2

 The statutory prohibition is set forth at Sec. 2704 of the Public Health Service Act (PHS Act), which was added by 

section 1201 of the ACA. Section 2704 broadens current HIPAA provisions, which only apply to group health plans 

and group health coverage. 

2 
issuers to exercise “good faith efforts” in implementing condition-based 

exclusions. In this context, “good faith efforts” should be defined to prohibit plans 

from imposing condition-based exclusions if their effect is to subvert the intent of 

the new preexisting condition exclusions policy. In this instance, the Departments 

and state Insurance Commissioners should have the authority to nullify conditionbased exclusions. 

o Excessive waiting periods, which run more than 90 days, should fall within the 

definition of prohibited “exclusions.”

 The Departments should use their regulatory authority to prohibit unreasonable premium 

increases for children receiving health coverage through the individual market. Currently, 

federal law prohibits group plans from charging higher premiums, but community rating 

restrictions in the individual market will not become effective until 2014. Accordingly, in 

the interim, children with preexisting conditions, who receive coverage through the 

individual market, may be charged excessive premiums. Such high premiums may defeat 

the purpose of prohibiting preexisting conditions exclusions, i.e., expanding coverage to 

more children. One way to prevent such unreasonable premium increases may be to 

prohibit health plans and health insurance issuers from asking questions about the health 

status of children on health insurance applications, thereby minimizing the risk of 

discriminatory treatment of children. Further, the Secretary of Health and Human 

Services (HHS) and state Insurance Commissioners should monitor premiums for 

individual family policies with children to ensure that excessive premiums are not being 

imposed. 

Lifetime and Annual Limits 

We applaud the interim final rules that prohibit health plans and health insurance issuers from 

imposing lifetime limits as well as unreasonable annual limits until 2014 when such limits are 

prohibited all together.3

 These restrictions on lifetime and annual limits only apply to “essential 

health benefits,” a term that is defined in the Affordable Care Act to include ten general 

categories.4

 We believe the interim final rules could be improved in the following ways: 

 Regulations regarding “essential health benefits” should be issued as soon as practicable. 

In the meantime, according to the preamble of the interim final rules, health plans and 

health insurance issuers may use “good faith efforts,” to determine the meaning of 

“essential health benefits.”5

 In 2014, large group and self-insured plans will continue to 

use good faith efforts to determine whether certain benefits are subject to the lifetime and 

annual limit restrictions. This may lead to significant variations in the set of benefits 

subject to the rule. Further, health plans and health insurance issuers may unduly narrow 

 

3

 The interim final rules are set forth at 26 CFR 54.9815-2711T, 29 CFR 2590.715-2711, 45 CFR 147.126. The 

interim final rules implement the statutory provisions of Sec. 2711 of the PHS Act, which was added by Sec. 1001 

of the ACA. 

4

 ACA, § 1302. 

5

 Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits, 

Rescissions, and Patient Protections, 75 Fed. Reg. 37188, 27191(June 28, 2010). 

3 
the scope of essential health benefits through the imposition of new coverage restrictions. 

And this may impact the federal government’s definition of “essential health benefits” 

because this term will, in part, be based on a survey of what constitutes a “typical 

employer health plan.” Therefore, the sooner the HHS Secretary can issue the essential 

health benefit regulations, the better. 

 The rules should provide an objective definition of “good faith efforts” to comply with a 

reasonable interpretation of essential health benefits. CCD believes the Departments 

should provide examples of actions constituting “good faith efforts” for determining the 

meaning of essential health benefits. The Departments and insurance commissioners 

should have the authority to prohibit insurance plans from limiting coverage of benefits 

to subvert the intention of the ACA provisions on prohibiting lifetime and unreasonable 

annual limits on those benefits. 

 The Departments should issue restrictions on benefit-specific limitations (e.g., dollar or 

treatment frequency) that are imposed to subvert the intent of restrictions on lifetime and 

annual limitations. Different types of illnesses or injuries may require different levels of 

medical intervention, treatment, or care. Accordingly, it is important that health plans and 

health insurance issuers not sidestep restrictions on lifetime and annual limits by either 

imposing caps on costs related to a specific treatment, or by limiting treatment frequency. 

The Departments should require that health plans and health insurance issuers act in good 

faith and impose no restriction or limitation designed to subvert the intent of the annual 

and lifetime limit restrictions. Such a finding by the Departments or state Insurance 

Commissioners should render these types of limitations null and void. 

 The imposition of restrictions on the use of annual and lifetime limits may have the 

unintended consequence of prompting health plans and health insurance issuers to impose 

“condition-based exclusions” of benefits in order to limit health expenditures in the 

future. The interim final rule explicitly permits “condition-based exclusions” of benefits. 

The rule states: 

“The rules of this section do not prevent a group health plan, or a health insurance 

issuer offering group or individual health insurance coverage, from excluding all 

benefits for a condition.”6

 

CCD strongly urges the Secretaries to clarify that condition-based exclusions of benefits 

must not violate the requirements of the Americans with Disabilities Act of 1990, which 

prohibits “disability-based distinctions” in health insurance coverage. In fact, in issuing 

interim guidance on this issue in 1993, the Equal Opportunity Employment Commission 

(EEOC) stated the following: 

“[H]ealth-related insurance distinctions that are based on disability may violate the 

ADA. A term or provision is “disability-based” if it singles out a particular disability 

(e.g., deafness, AIDS, schizophrenia), a discrete group of disabilities (e.g., cancer, 

 

6

 Sections 26 CFR 54.9815-2711T(b)(2), 29 CFR 2590.715-2711(b)(2), 45 CFR 147.126(b)(2). 

4 
muscular dystrophies, kidney diseases), or disability in general (e.g., noncoverage of 

all conditions that substantially limit a major life activity).”7

 CCD believes that health plans and health insurance issuers may react to the elimination 

of lifetime limits by imposing new annual limits in benefits subject to the new dollar caps 

that are permissible until 2014 under the interim final rules. CCD believes that the 

Departments should promulgate a regulatory moratorium which would prohibit health 

plans and health insurance issuers from imposing new annual limits on essential health 

benefits. That is, no health plan or health insurance issuer should be permitted to impose 

an annual limit where none existed prior to enactment of the Affordable Care Act. Such 

a moratorium would supplement interim final regulations regarding “grandfathered health 

plans,” which state that a health plan or health insurance issuer will lose grandfather 

status if it imposes annual limits on essential health benefits under any of the following 

situations: 

“(a) the plan, on March 23, 2010, did not impose an overall annual or lifetime limit, 

and now imposes an overall annual limit; 

(b) the plan, on March 23, 2010, imposed an overall lifetime limit, and now imposes 

an annual limit at a dollar value that is lower than the dollar value of the lifetime 

limit; or 

(c) the plan, on March 23, 2010, imposed an overall annual limit and now decreases 

the annual limit.”8

 

 The rules should clarify how lifetime and annual limits will apply to large group and selfinsured plans, because such plans will not be required to provide the essential health 

benefits package. 

 The interim final rules allow the HHS Secretary to waive restrictions on annual limits if 

compliance would result in a significant decrease in access to benefits or a significant 

increase in premiums. Consumer protections should be included to ensure that waivers do 

not have a negative, disproportionate effect on specific patient populations, especially 

those based on diagnosis or health status. Indeed, the rules should allow the Secretary to 

rescind waivers if there is such a negative, disproportionate effect. 

Prohibition on Rescissions 

We applaud the interim final rules that prohibit health plans and health insurance issuers from 

rescinding coverage except for fraud or intentional misrepresentation of a material fact.9

 We 

believe the rules could be strengthened in the following ways: 

 

7

 EEOC Interim Guidance on Application of ADA to Health Insurance, EEOC Compliance Manual, June 8, 1993. 8

 26 CFR 54.9815–1251T(g)(vi), 29 CFR 2590.715–1251(g)(vi), and 45 CFR 147.140(g)(vi). 

9

 The interim final rules are set forth at 26 CFR 54.9815-2712T, 29 CFR 2590.715-2712, 45 CFR 147.128. The 

interim final rules implement the statutory provisions of Sec. 2712 of the PHS Act, which was added by Sec. 1001 

of the ACA. 

5 
 The rules now allow rescissions only in a limited set of circumstances. In those 

circumstances, consumers should be given the opportunity for independent, third-party 

review of any rescissions. Further, health plans and health insurance issuers should be 

required to continue coverage during the review and appeals process. 

 The rules should provide a definition for the term “material fact.” For example, the 

definition of “material fact” should require a causal connection linking an alleged 

omission and the condition that triggered the look back. 

 Consumers should be given independent and clear “how-to” manuals which instruct how 

to fairly complete an insurance application. Applications should be standardized to avoid 

confusion and complexity.

Patient Protections 

CCD also strongly supports the interim final rules regarding patient protections, which allow 

consumers greater choice in selecting in-network primary care providers and pediatricians.10

Similarly, we applaud these interim final rules because they also prohibit mandatory referrals or 

prior authorizations for emergency care or obstetrical and gynecological care. These consumer 

access provisions were contained in more comprehensive patients’ rights legislation proposed in 

2001.11 CCD strongly supported this patient rights legislation, but it was not enacted at the time. 

The promulgation, now, of a limited set of patients’ rights is a positive development, but we urge 

the Departments to strengthen these consumer protections in the following ways: 

 The Secretaries of the Departments should use their discretion to strengthen the definition 

of a “primary care provider,” as used in the consumer protection rules. CCD believes that 

a “primary care provider” should be defined in functional terms, and not solely on the 

basis of who is providing care. In particular, we urge the Departments to adopt a multidimensional definition of primary care, as suggested by the Institute of Medicine (IOM):

“Primary care is the provision of integrated, accessible health care services by 

clinicians who are accountable for addressing a large majority of personal health 

care needs, developing a sustained partnership with patients, and practicing in the 

context of family and community.”12

CCD believes this definition would remove unnecessarily sharp distinctions between 

generalists and specialists, at least when it comes to the provision of care to people with 

chronic conditions and disabilities. Consequently, adoption of this concept of primary 

care may allow patients, particularly those with disabilities and chronic conditions, to 

 

10 The interim final rules are set forth at 26 CFR 54.9815-2719AT, 29 CFR 2590.715-2719A, 45 CFR 147.138. The 

interim final rules implement the statutory provisions of Sec. 2719A of the PHS Act, which was added by Sec. 1001 

of the ACA. 

11 See the Bipartisan Patient Protection Act, S. 1052 and H.R. 2563 (as introduced) from the 107th Congress. 

Sections 112, 115, 116 contain provisions for access to primary care, obstetrical and gynecological care, and 

pediatric care, respectively. 

12 Institute of Medicine, Committee on the Future of Primary Care, Primary Care: America’s Health in a New Era 

(Washington: National Academy Press, 1996), p. 31. 

6 
have better access to specialty care without prior authorization from a primary care 

“gatekeeper” who is a generalist. This would be a critical protection in health plans that 

use a network of providers that are only accessible through a primary care coordinator. 

Many people with disabilities and chronic conditions know their condition well and are 

active participants in managing their health care. In these instances, direct access to a 

specialist is often more efficient, less costly to the plan, and may lead to better, more 

timely care. In fact, in many instances, specialists already serve as de facto care 

coordinators for persons with disabilities. CCD believes that the Secretaries of the 

Departments should exercise their discretion to ensure that the final rules permit enrollees 

with disabilities and chronic conditions the option of selecting a willing specialist to 

serve as a care coordinator in plans that employ a network delivery model that utilizes the 

care coordinator concept. 

 The provisions for emergency care should be expanded. Notably, the current rule protects 

patients from undue cost-sharing and administrative burdens if they receive out-ofnetwork emergency care without prior authorization, but there are no explicit similar 

provisions for in-network care obtained without prior authorization. 

CCD believes the interim final rules are a significant step forward for persons with disabilities 

and chronic conditions. Nonetheless, we believe that the rules could be further strengthened in 

significant ways. If you have any questions, please feel free to contact any of the Health Task 

Force Co-Chairs listed below. Thank you for your consideration of our comments. 

Sincerely: 

CCD Health Task Force Co-Chairs: 

 

Mary Andrus Tim Nanof Angelo Ostrom 

Easter Seals American Occupational Epilepsy Foundation 

mandrus@easterseals.com Therapy Association aostrom@efa.org

 tnanof@aota.org 

 Julie Ward Peter Thomas 

The Arc of the US & Brain Injury Association 

United Cerebral Palsy of America 

ward@thedpc.org peter.thomas@ppsv.com

7 
8 

CCD Health Task Force Members: 

ACCSES 

American Academy of Physical Medicine and Rehabilitation 

American Association of People with Disabilities 

American Association on Health and Disability 

American Counseling Association 

American Medical Rehabilitation Providers Association 

American Music Therapy Association 

American Network of Community Options and Resources

American Occupational Therapy Association 

American Physical Therapy Association 

American Speech Language Hearing Association 

American Therapeutic Recreation Association 

Association of University Centers on Disabilities 

Autism National Committee 

Autism Society 

Autism Speaks 

Bazelon Center for Mental Health Law

Brain Injury Association of America 

Burton Blatt Institute 

Children and Adults with Attention-Deficit/Hyperactivity Disorder 

Community Access National Network 

Dialysis Patient Citizens 

Disability Rights Education and Defense Fund 

Easter Seals 

Epilepsy Foundation 

Mental Health America 

National Alliance on Mental Illness 

National Association of Councils on Developmental Disabilities 

National Association of County Behavioral Health and Developmental Disability Directors 

National Association of State Head Injury Administrators 

National Association for the Advancement of Orthotics and Prosthetics 

National Council for Community Behavioral Healthcare 

National Council on Independent Living 

National Disability Rights Network 

National Down Syndrome Congress 

National Multiple Sclerosis Society 

National Spinal Cord Injury Association 

Paralyzed Veterans of America 

TASH 

The Arc of the United States 

Tourette Syndrome Association 

United Cerebral Palsy 

United Spinal Association