DAVID H. POTTS-DUPRE

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Porrs-Drrenn, Dtl'non & Il-twrrrrvs

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August 11, 2010

FAX (202) 223-3A6a

Submitted Electronically via http ://www.reeulations.sov

The Honorable Phyllis Borzi

Assistant Seøetary

Employee Benefits Security Administration

U.S. Department of Labor

200 Constitution Avenue, N.W.

Room 3-2524

Washington, DC 20210

Re: RIN 1210-AB4l

Dear Ms. Borzi:

This office represents the International Brotherhood of Electrical V/orkers (IBEW) and is

filing these comments on the interim final rule implementing Section 2114 if of the Patient

Protection and Affordable Care Act (PPACA) published by the Departments of Labor, Treasury,

and Health and Human Services on May I3,20I0.

The IBEW first wishes to echo the comments and recommendations made by the

National Coordinating Committee for Multiemployer Plans (NCCMP). Like the NCCMP, the

IBEW recommends that (1) it be made clear that the required coverage to age 26 does not extend

beyond an unambiguous and circumscribed definition of "child", (2) plans be granted discretion

to adopt their own definitions and limitations with regard to adopted children, step-children,

foster children, and the like, (3) plans be granted discretion to voluntarily extend coverage to

other groups of children and (4) a uniform national standard be adopted defining when a child is

considered an "adult".
The Honorable Phyllis Borzi

August 17,2010

Page 2

Porrs-DuPRE, Drpe¡e & H,rwxrNs

In addition to the comments and recommendations of the NCCMP, the IBEW wishes to

focus the attention of the agencies responsible for administering the PPACA on a particular piece

of the law and ask that the agencies utilize all the discretionary authority they have to minimize

the negative effects of this part of the law on group health plans. The part of the law that

troubles the IBEW is the requirement that group health plans provide coverage for children to

age 26 even where the child is employed.

Unions and unionized employers have always been at the forefront in offering health

coverage to employees. They believe health coverage (and pension coverage) is a moral

imperative in the relationship between an employer and its employees. That view is clearly not

held in the non-union sector. The IBEW and its management counterpart, the National Electrical

Contractors Association, have always competed against non-union companies that do not provide

any health coverage to their employees and, as a result of those cost savings, are able to undercut

job bids from employers that provide health coverage. The IBEV/ has long promoted mandatory

employer provided health care coverage because it believes such coverage is the employer's

responsibility and because it would even the playing ground. This provision is inherently

destructive and will lead to a loss of health coverage as employers not providing health coverage

gain work at the expense of those employers providing coverage.

The PPACA, however, has a provision that could, in some instances, require a union

sponsored group health plan to provide coverage to a child who is working in the non-union

sector and is not provided health coverage by his or her employer. It is fundamentally unfair to

ask the unionized-employer sector, whose interests are more closely aligned with the goals of the

PPACA, to subsidize the non-unionized-employer sector, whose employers typically go to great

lengths to minimize spending on employee benefits.

The law and the interim f,rnal rule adopts a special rule for grandfathered health plans that

permits those plans, until the plan year beginning on or after January 1,2014, to deny coverage

to an adult child if the adult child is ooeligible" to enroll in an employer sponsored health plan.

This temporary relief, however, will do nothing for plans if the adult child goes to work for a

non-union electrical contractor or any other employer that refuses to provide health coverage.

Further, after January l, 2014, it will make no difference if the adult child is eligible for

employer sponsored coverage or not as plans will be required to cover these individuals

regardless whether coverage is offered.

The IBEW recognizes that the agencies are constrained to an extent by the language of

the law. Nevertheless, the IBEW would ask that the agencies consider whether they have any
The Honorable Phyllis Borzi

August ll,2010

Page 3

Porrs-DupRn, DrpBnn & H,qwNINs

discretion to mitigate the requirement that responsible employers and responsible plans shoulder

the financial burden for those inesponsible employers.

For instance, the agencies do have discretion with regard to the issue whether an adult

child is "eligible" to enroll. A grandfathered health plan, in many, if not most, instances, will

provide better coverage than a non-grandfathered health plan. An adult child may choose not to

apply for employer provided coverage if the coverage he or she gets through the parent's

grandfathered plan is superior and the individual may feel that the grandfathered plan will not

know he or she was o'eligible" for coverage under the employer plan. Since the grandfathered

plan cannot know whether an adult child is eligible for coverage, the regulation should place the

clear burden on the adult child or the participant to prove that the adult child is not "eligible to

enroll in an eligible employer-sponsored health plan". The IBEW recommends that

grandfathered plans be permitted to adopt a presumption that the adult child is employed and

eligible for employer provided coverage unless and until the adult child rebuts that presumption.

The adult child and the participant parent should be required to submit a statement advising that

the individual is not employed and the grandfathered plan should have recourse to recover

benefits or premiums paid with respect to the adult child from the participant and the adult child

if the statement is false. If the adult child is employed, the adult child should be required to

submit a statement from his or her employer veriffing that the individual is not eligible for

employer provided health coverage and the grandfathered plan should have recourse to recover

benefits or premiums paid with respect to the adult child from the employer, the parent

participant and the adult child if the statement is false.

Thank you for considering the IBEW's comments. If you have any questions, please let

me know.

Sincerely,

Drpnun & Hnwxr S, CHTD.

DPD:acp