August 27, 2010 

Office of Consumer Information and Insurance Oversight 

Department of Health and Human Services 

Attention: OCIIO–9994–IFC 

P.O. Box 8016 

Baltimore, MD 21244–1850 

Submitted Electronically 

Re: OCIIO–9994–IFC, Interim Final Rules for Group and Individual Health Plans re 

Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient 

Protections 

Dear Sir or Madam: 

The National Retail Federation (NRF) represents the greater retail industry, 

employers of one of every five employees in the American economy. As the world's 

largest retail trade association and the voice of retail worldwide, NRF’s global 

membership includes retailers of all sizes, formats and channels of distribution as well 

as chain restaurants and industry partners from the U.S. and more than 45 countries 

abroad. In the U.S., NRF represents the breadth and diversity of an industry with more 

than 1.6 million American companies that employ nearly 25 million workers. 

Our members are strong supporters of employer-based health coverage and thus 

are vitally interested in the course of reform implementation and its effect on the cost of 

medical care and coverage. In our view, these interim final regulations addressing 

market conduct under the heading of patient protections have generally struck an 

appropriate balance between affected interests. Our comments below seek to clarify or 

improve upon the existing regulatory framework in the interim final rules in several 

respects. 

NRF also has joined in a separate coalition comment letter (August 26, 2010) 

with the American Benefits Council, the National Association of Manufacturers and the 

U.S. Chamber of Commerce. We recognize and appreciate that NRF’s comments 

today will be shared through the electronic portal with the Department of Health and 

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

Department of Treasury. 

 
National Retail Federation 

August 27, 2010 

OCIIO–9994–IFC

2 

Annual Limits and Limited Benefit Plans 

 

 The Patient Protection and Affordable Care Act (PPACA) and this interim final 

regulation address both lifetime and annual benefit limits. Lifetime limits are outlawed 

for plan years beginning after September 2010. Annual limits are phased out between 

plan years beginning after September 2010 and 2014.

 NRF was among several groups that raised concerns about the effect of the 

phased restrictions on annual benefit limits on existing health coverage, especially 

limited benefit plans (also sometimes known as “mini-med” plans). Such plans are 

sometimes seen in the retail and restaurant communities, frequently for part-time 

employees. 

We argued that application of the annual limit restrictions on these plans would 

remove an important source of health coverage for millions of Americans without 

recourse to affordable alternatives in advance of 2014. Our allied concerns were clearly 

heard by the Obama Administration, as evidenced by the introduction in the interim final 

rule of a prospective waiver of the annual limit restrictions before 2014. We commend 

the Administration for taking a flexible approach to this problem. The priority must be on 

ensuring continuity of existing coverage through a quick and fair waiver process. No 

one will be helped by the loss of their existing coverage. 

 NRF is confident that the Administration will continue to seek to accelerate subregulatory guidance on the waiver process – particularly in advance of the pending work 

toward company open seasons for 2011 benefits. Timing is critical to meet this goal. 

We also urge the Secretary to further exercise her discretion by simultaneously waiving 

application of medical loss ratio standards to coverage receiving a waiver from 

application of annual limit restrictions. This is also vitally important to preserve this 

coverage in the interim period before 2014. Finally, we encourage the Administration to 

extend the waiver or waivers continuously through plan years beginning in 2014 

(assuming no substantial changes to the coverage considered under the waiver or 

waivers) to help ensure the greatest possible continuity of coverage in advance of the 

landmark changes and premium assistance available beginning in 2014. 

Access to Emergency Services 

 We concur with the objective of improving access to emergency services but 

urge the Administration to take care to ensure that this does not undercut network 

participation or otherwise substantially increase costs for plan participants. As 

suggested in our joint employer letter of August 26, 2010, one way to address network 

incentives might be to allow a cap on out-of-network reimbursement. In addition, we 

strongly urge you to protect patients by prohibiting balance billing by out-of-network 

emergency room providers. An out-of-network emergency room door is not really open 
National Retail Federation 

August 27, 2010 

OCIIO–9994–IFC

3 

if a patient will face the prospect of balance bill charges. The capped out-of-network 

reimbursement really ought to be sufficient for out-of-network emergency room 

providers. 

Pre-existing Condition Exclusions for Children 

 PPACA and this interim final regulation prohibit preexisting condition exclusions 

for children age 19 and younger for plan years beginning after September 2010. All 

preexisting condition exclusions are prohibited after 2014. We strongly encourage you 

to follow the Administration’s July clarification regarding structured enrollment periods. 

PPACA seeks to ensure universal coverage by requiring all individuals to obtain 

coverage effective in 2014. It is important in the interim between now and 2014 not only 

to expand coverage for children but also to ensure that coverage is obtained and 

maintained prior to illness. The old insurance adages that a burning building cannot be 

freshly insured or that new flood coverage cannot be obtained for a flood-stricken 

residence hold true here regarding health coverage as well. Structured enrollment is an 

important accommodation in advance of the individual mandate to obtain coverage in 

2014. 

 

Conclusion

Thank you for allowing NRF to comment on the IFR concerning: annual benefit 

limit restrictions and limited benefit plans; access to emergency services; and the 

prohibition on preexisting condition exclusions for children. We look forward to 

continuing to work with you in the months and years ahead as PPACA phases in. 

Sincerely, 

 

E. Neil Trautwein 

Vice President 

Employee Benefits Policy Counsel