Three federal agencies involved with crafting and enforcing the Patient Protection and Affordable Care Act got caught trying to slip a requirement past employers.

At least that the contention of The ERISA Industry Committee.

In a letter to the U.S. Departments of Labor, Treasury, and Health and Human Services, ERIC accused Labor and Treasury of teaming up to attempt to add new guidance about cost-sharing that is unenforceable and was promulgated outside the guidelines established for creation of new requirements.

ERIC asked the departments “to immediately retract the recent ‘clarification’ of the rules applicable to cost-sharing limits in large group health plans.”

The letter charged that the new guidance was buried in the preamble to a 129-page guidance tome issued by the departments, and was never referred to again after the preamble.

Most large plan employers—who would be affected by the new cost-sharing rule—missed the guidance until months after it had been issued, ERIC said.

“Immediate withdrawal is imperative as plan sponsors are literally in the midst of finalizing their benefits for the 2016 plan year; it is essential that they know very, very quickly that they will be able to finalize their plan designs and operations for 2016 without having to accommodate this wholly unexpected and unjustified policy change,” the letter said. “If the Departments wish to promulgate a new substantive rule of this magnitude, they must follow the rulemaking procedure prescribed by the Administrative Procedure Act, and they must identify the source of their authority to create the rule. They must give employers and other affected parties adequate notice and sufficient time to comment. Any substantive rule the Departments ultimately adopt must give employers time to understand and implement the new requirement.”

Further, the letter states, the rule flies in the face of other PPACA rules and guidelines about how large plan sponsors are to address cost-sharing.

“The assertion that these plans are subject to the self-only limit when they provide coverage other than self-only coverage is not supported by the statute. The manner in which the Departments have created this new requirement is not consistent with the Administrative Procedure Act or with the most basic principles of fairness and good government. We ask the Departments to recognize that the requirement is unenforceable and to announce that it has been withdrawn.”

ERIC said it polled its members and found that 70 percent said they would be “moderately or significantly affected by this rule change.”

Instant Insights /

Treasury, Labor slammed for cost-sharing sleight of hand

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