Three federal agencies involved with crafting and enforcing thePatient Protection and Affordable CareAct got caught trying to slip a requirement pastemployers.

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At least that the contention of The ERISA Industry Committee.

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In a letter to the U.S. Departments of Labor, Treasury, andHealth and Human Services, ERIC accused Labor and Treasury ofteaming up to attempt to add new guidance about cost-sharing thatis unenforceable and was promulgated outside the guidelinesestablished for creation of new requirements.

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

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

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

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“Immediate withdrawal is imperative as plan sponsors areliterally in the midst of finalizing their benefits for the 2016plan year; it is essential that they know very, very quickly thatthey will be able to finalize their plan designs and operations for2016 without having to accommodate this wholly unexpected andunjustified policy change,” the letter said. “If the Departmentswish to promulgate a new substantive rule of this magnitude, theymust follow the rulemaking procedure prescribed by theAdministrative Procedure Act, and they must identify the source oftheir authority to create the rule. They must give employers andother affected parties adequate notice and sufficient time tocomment. Any substantive rule the Departments ultimately adopt mustgive employers time to understand and implement the newrequirement.”

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Further, the letter states, the rule flies in the face of otherPPACA rules and guidelines about how large plan sponsors are toaddress cost-sharing.

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“The assertion that these plans are subject to the self-onlylimit when they provide coverage other than self-only coverage isnot supported by the statute. The manner in which the Departmentshave created this new requirement is not consistent with theAdministrative Procedure Act or with the most basic principles offairness and good government. We ask the Departments to recognizethat the requirement is unenforceable and to announce that it hasbeen withdrawn.”

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

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