August 27, 2010 

VIA ELECTRONIC FILING – www.regulations.gov

The Honorable Kathleen Sebelius 

Secretary 

United States Department of Health and Human Services 

200 Independence Avenue SW 

Washington, DC 20201 

The Honorable Hilda L. Solis 

Secretary 

United States Department of Labor 

200 Constitution Ave., NW 

Washington, DC 20210 

The Honorable Timothy F. Geithner 

Secretary 

United States Department of the Treasury 

1500 Pennsylvania Avenue, NW 

Washington, D.C. 20220 

Re: Interim Final Rules; Requirements for Group Health Plans and Health Insurance 

Issuers Under the Patient Protection and Affordable Care Act Relating to 

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

Patient Protection, 

HHS File Code OCIIO-9994-IFC; DOL File No. RIN 1210-AB43; 

IRS File No. REG-120399-10 

Dear Secretaries Sebelius, Solis and Geithner: 

 The Council of Insurance Agents & Brokers (CIAB) appreciates this opportunity to 

provide comments on the Departments’ Interim Final Rule (IFR) setting forth requirements 

relating to preexisting condition exclusions, lifetime and annual limits, rescissions, and patient 

protection under the Patient Protection and Affordable Care Act (PPACA).1

 CIAB is the premier 

association for commercial insurance and employee benefits intermediaries in the United States. 

 1

 Interim Final Rules; Requirements for Group Health Plans and Health Insurance Issuers 

Under the Patient Protection and Affordable Care Act Relating to Preexisting Condition 

Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protection, 75 Fed. Reg. 37188 

(June 28, 2010). 
- 2 -

We represent leading commercial insurance agencies and brokerage firms, with members 

in over 3,000 locations placing more than $90 billion of U.S. insurance products and services 

including group health insurance. Our members serve tens of thousands of employer-based 

health insurance plans covering millions of American workers, and seek to help employers to 

offer their employees the health coverage they need at a cost they can afford. As such, our 

membership has a thorough understanding of the group health insurance market, and has had a 

unique opportunity to observe the challenges group health plans have faced thus far in the 

PPACA implementation process. 

Overview

 Our comments on the IFR focus on the need for additional necessary guidance and for 

certain clarifications to better facilitate compliance and allow plans to meet the needs and 

expectations of the participants they serve. We are particularly concerned that the IFR has left 

the task of developing a detailed definition of “essential benefits” to future proceedings even 

though this concept is the foundation of the rules governing annual and lifetime limits. We urge 

the Departments to issue further guidance on the definition of essential benefits as quickly as 

possible. We recognize that this task is a sizable one. But our members are concerned that an 

extended period without regulatory guidance on this issue will increase the likelihood of 

confusion and difficulties for group plan participants arising from problems such as 

inconsistency in how various plans classify particular services. CIAB stands ready to assist the 

Departments in this process by providing any additional input on the definition of “essential 

benefits” that may be of use, given our members’ expertise in this area. 

In the meantime, considering that plans are largely left on their own to navigate this 

uncharted territory, we request that the Departments provide an explicit safe harbor for plans that 

rely on established company or industry practice to help categorize benefits as essential or nonessential. We believe that the Departments’ commitment to consider plans’ good faith efforts to 

“comply with a reasonable interpretation of the term” is constructive. But plans that are making 

design decisions at the present moment and that are making an effort to utilize a rational basis for 

categorizing benefits, such their own past practice or that of the industry, should have more 

definitive assurance that their good faith efforts will not result in enforcement action. 

Additionally, guidance is necessary on how plans can manage access to treatments and 

services that will be classified as essential benefits but traditionally have been covered based on 

a separate measurement – a particular number of visits or treatments. The most problematic 

category of essential benefits in this regard is “rehabilitative and habilitative services.” If 

unlimited dollar amounts are simply translated into an unlimited number of visits or treatments 

for chiropractic care, for example (assuming such care is considered an essential benefit), plan 

sponsors will quickly face a situation in which costs for such services will be unmanageable, 

which will not have a positive impact on the overall affordability of plans for employees. 

Therefore, we recommend that plans be permitted to use reasonable medical management 

techniques to determine coverage parameters for treatments and services that have been 

governed on a per visit or per service basis, just as plans have been permitted to do with respect 

to preventive services. 
- 3 -

Definition of Essential Benefits

The restrictions on annual and lifetime limits apply to “essential benefits,” which makes 

the definition of “essential benefits” critically important. While PPACA sets forth categories of 

benefits considered essential, the language in the statute is just that – broad categories, rather 

than an enumeration of particular benefits that will not be subject to annual or lifetime limits.2 

The IFR has adopted these broad categories as the definition of essential benefits for purposes of 

the rules on annual and lifetime limits, with no additional detail.3

 Thus, there is presently no 

definitive guidance for example, of how chiropractic treatment, or non-emergency use of hospital 

emergency room services, should be categorized. 

CIAB members have received numerous urgent requests for information from plan 

sponsors who are attempting to comply with the annual and lifetime limits rules, but have 

questions about how to categorize particular services so that their plans can be structured 

accordingly. Among the most frequently asked questions are whether chiropractic services 

should be categorized as “rehabilitative and habilitative services,” and whether infertility 

treatment would be considered an essential benefit. 

CIAB believes plans are making good faith efforts to categorize treatments and services 

to the best of their ability in light of the present absence of regulatory guidance. But we urge the 

Departments to issue more detailed guidance on the definition of essential benefits as quickly as 

possible, particularly since the majority of plans have January 1 renewal dates and are currently 

in the process of attempting to structure their benefits to comply with PPACA starting January 1, 

2011 as the statute requires. We recognize that the enumeration of specific treatments and 

services that fall within the “essential” category represents a sizable task for the Departments. 

However, the longer the wait for guidance, the greater the chance of difficulties that all wish to 

avoid, such as inconsistencies in how various plans categorize particular services, and confusion 

on the part of employees about which services are subject to limits. 

In the interim, our members believe that reference to established company or industry 

practice, where such practices exist, is one way to make rational and informed classifications of 

services. Thus, for example, many employer-sponsored plans do not cover infertility treatment 

(unless required by state law).4

 Plans may infer from this fact that such treatment would not be 

 2

 The categories of “essential benefits” listed in Section 1302(b) of PPACA are: 

ambulatory patient services; emergency services; hospitalization; maternity and newborn care; 

mental health and substance use disorder services, including behavioral health treatment; 

prescription drugs; rehabilitative and habilitative services and devices; laboratory services; 

preventive and wellness services and chronic disease management; and pediatric services, 

including oral and vision care. 

3

 IFR, 75 Fed. Reg. at 37191. 

4

 For example, New Jersey and Massachusetts require group health plans that provide 

pregnancy-related coverage (but not self-insured plans) to cover a broad range of infertility 

treatments. 
- 4 -

considered an essential benefit (in addition to the observation that this treatment does not appear 

to fit within the categories identified in the statute). CIAB further suggests that where plans 

classify treatments and services based on established practices, plans should have the advantage 

of an explicit safe harbor from enforcement actions based on those classifications, in addition to 

the Departments’ existing commitment to take into account good faith efforts to comply.5

The Role of Reasonable Medical Management Techniques

The CIAB also requests guidance on managing access to treatments and services that will 

be classified as essential benefits but have traditionally been administered on a per visit or per 

treatment basis. For example, many plans cover chiropractic care through a certain number of 

visits per year. If a plan classifies chiropractic care as “rehabilitative and habilitative services,” 

chiropractic care, as an essential benefit, will be subject to the rules on annual and lifetime limits. 

But unlimited dollar amounts should not simply be translated into an unlimited number of visits 

or treatments for chiropractic care. Otherwise, sponsors will quickly face a situation in which 

costs for such services will be unmanageable, which can adversely impact premiums for 

employees and perhaps even availability of coverage. 

The Departments addressed an analogous problem in its Interim Final Rule on free 

preventive services.6 In that context, the Departments recognized that reliance on established 

guidelines was necessary to outline reasonable parameters for such services. More specifically, 

where guidelines from relevant regulatory or expert bodies address the frequency, method, 

treatment, or setting for the provision of a particular service (e.g., the recommendations of the 

Advisory Committee on Immunization Practices of the Centers for Disease Control and 

Prevention), plans must follow those guidelines. Where such guidelines do not address the 

frequency, method, treatment, or setting for a covered item, plans are allowed to use “reasonable 

medical management techniques to determine any coverage limitations.”7 

A similar standard should be applied here to those services that traditionally are covered 

on a per visit or per treatment basis. Thus, while no dollar limits would be placed on such 

essential benefits, plans would be permitted to use “reasonable medical management techniques” 

– a known standard – to determine parameters for the frequency, method, treatment, or setting 

for these services. 

Relatedly, we also seek clarification of plans’ obligations where the essential benefits and 

preventive services rules overlap. For example, questions have been raised about annual 

 5

 Of course, good faith compliance efforts should be taken into account for all 

classification decisions made by a plan, whether or not the plan is able to identify an established 

practice to rely upon for guidance. 

6

 Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to 

Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. 

Reg. 41726 (July 19, 2010). 

7 Id. at 41729. 
- 5 -

physical exams, which may be classified under the “preventive and wellness services” category 

of essential benefits and thus subject to no annual or lifetime limits, but which also fall under the 

preventive services rule and would be subject to first dollar coverage by non-grandfathered 

plans. The combined effect of these rules should not be that plans are required to provide first 

dollar coverage of an unlimited number of routine physical exams each year, or here again, costs 

will quickly become unmanageable. Rather, the rule on annual and lifetime limits should 

specify that use of reasonable medical management techniques (where permitted), does not 

trigger an annual or lifetime limit analysis. 

Conclusion

 The CIAB appreciates this opportunity to comment on the Departments’ IFR concerning 

annual and lifetime limits. The Council and its members continue to work diligently in assisting 

employers in their efforts to comply with PPACA and related regulations. However, we 

encourage the Departments to clarify the various issues discussed here to better facilitate 

compliance, and to help plans manage access to services in a manner that will ensure that costs 

and premiums remain affordable to participants. The CIAB stands ready to provide any 

additional assistance that may be helpful. 

Respectfully submitted, 

Ken A. Crerar 

 President 

The Council of Insurance Agents & Brokers 

701 Pennsylvania Avenue, NW 

Suite 750 

Washington, DC 20004-2608 

(202) 783-4400 

ken.a.crerar@ciab.com