August 27, 2010 

Submitted Electronically 

The Honorable Kathleen Sebelius 

Secretary of Health and Human Services 

U.S. Department of Health and Human Services 

Hubert H. Humphrey Building 

200 Independence Avenue, S.W. 

Washington, D.C. 20201 

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

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

File Code: OCIIO–9994–IFC 

Dear Madam Secretary: 

The Food Marketing Institute (FMI) appreciates the opportunity to respond to the interim final 

regulation (IFR) implementing the prohibition of lifetime limits and restrictions on annual limits 

that apply to group health plans and health insurance coverage in the group market under provisions 

of the Patient Protection and Affordable Care Act1 (PPACA). In particular, FMI wishes to 

comment on the program to waive the restricted annual limits in certain circumstances, including in 

the case of limited benefit or "mini-med" plans, that the Department of Health and Human Services 

(HHS) intends to establish. FMI is submitting these comments to HHS with the understanding that 

they will be shared with the Department of Labor (DOL) and the Department of the Treasury 

(Treasury). 

FMI is the national trade association that conducts programs in public affairs, food safety, research,

education and industry relations on behalf of its 1,500 member companies—food retailers and 

wholesalers—in the United States and around the world. FMI’s members in the United States 

operate approximately 26,000 retail food stores and 14,000 pharmacies. Their combined annual 

sales volume of $680 billion represents three quarters of all retail food store sales in the United 

States. FMI’s retail membership is composed of large multi-store chains, regional firms, and 

independent supermarkets. 

 

1

 P.L. 111-148. 
FMI Comments 

OCIIO–9994–IFC 

Page 2 of 3 

August 27, 2010 

The food retail and wholesale industry ranks among the largest industries in our country, providing 

nearly 4 million wage-and-salary jobs.2

 These workers are employed in a wide range of settings 

from small corner stores to large supercenters and million square foot distribution centers. The 

industry provides a diverse range of employment opportunities and requires a combination of fulltime and part-time workers to operate. For many employees, the grocery industry is their entry or 

re-entry point into the workforce. The industry has a constantly changing workforce at entry level 

positions and is also reliant on seasonal employees. Part-time employees in the industry include 

students, retirees and others with unique training or scheduling needs. Many Americans first enter 

the workforce through the grocery industry. Young workers between the ages of 16-24 held nearly 

a third of grocery jobs which the Bureau of Labor Statistics attributes to "the large number of jobs 

in this industry open to young workers who have little or no work experience."3

Given the nature of this workforce, it is vital that food retailers have the flexibility to offer their 

employees a variety of benefit options that meet the needs of both their long-term and temporary 

workers. Limited benefit plans are a key tool that food retailers use to provide affordable health 

coverage to their part-time or temporary employees during their tenure at the company. 

Immediately eliminating the ability to offer these plans before the health care exchanges are 

available in 2014 will result in the loss of health coverage for many part-time and temporary 

employees in the retail food industry. 

We were pleased that the IFR provides for the "Secretary of Health and Human Services to 

establish a program under which the requirements relating to restricted annual limits may be waived 

if compliance with these interim final regulations would result in a significant decrease in access to

benefits or a significant increase in premiums." In particular, we welcome the fact that the 

preamble to the IFR implicitly recognizes that limited benefit plans play an important role in 

providing certain individuals access to needed health services in an affordable manner. As you 

work to create this waiver program, FMI encourages the following considerations be included: 

• Self-funded, group health limited benefit plans should be eligible for a waiver in the same 

manner as insured "mini-med" policies; 

• For purposes of assessing whether compliance with the restrictions would result in a 

significant decrease in access to benefits or a significant increase in premiums, self-funded 

group health plan premiums should be determined based on the total cost of coverage, 

including all employee and employer contributions to pay for the coverage; 

• Multiemployer plans should be permitted to provide annual benefit limits under the waiver 

program that are not less than the plan's annual limit (or what was previously the plan's 

lifetime limit) in place on March 23, 2010, in recognition of the fact that the limits are the 

 

2

 Food Marketing Institute, Supermarket Facts <http://www.fmi.org/facts_figs/?fuseaction=superfact>. 

3

 Bureau of Labor Statistics, U.S. Department of Labor, Career Guide to Industries, 2010-11 Edition, Grocery Stores 

<http://www.bls.gov/oco/cg/cgs024.htm>. 
FMI Comments 

OCIIO–9994–IFC 

Page 3 of 3 

August 27, 2010 

product of intense bargaining by employer and union representatives as to the maximum 

health benefit levels the parties determine are affordable given the wage, pension and other 

obligations that must be covered out of the overall wage package; 

• A timely-filed waiver application should delay the effective date of the annual limit 

restrictions so that the plan is not deemed to violate the restrictions if the Secretary does not 

rule on the application in sufficient time for the plan to comply if the waiver application is 

denied; 

• Approved waivers should be valid for the duration of the period before the establishment of 

the health care exchanges and should not have to be renewed on a yearly basis; and 

• New employees and new enrollees should be allowed to participate in any plan approved in 

the waiver process. 

* * * 

FMI appreciates the opportunity to submit comments on this important matter and we are available 

to discuss any impact that these regulations will have on our members. In conclusion, FMI believes 

that it is vital that HHS, DOL and Treasury provide as much flexibility as possible to help ensure 

that those that wish to keep the coverage they currently have are able to do so. 

Sincerely, 

Erik R. Lieberman 

Regulatory Counsel