On Tuesday, April 8, 1997, the U.S. Departments of Labor, Health and Human Services (HHS), and Treasury issued the interim final rule for implementation of the Health Insurance Portability and Accountability Act of 1996, also known as the Kassebaum-Kennedy bill. The interim rule, which took effect upon publication, addresses motorcyclists' concerns, but left us with additional work to do to ensure the end of health care insurance discrimination against motorcyclists by employer provided health care plans.
Sections 702 and 2702 of the Health Insurance Portability and Accountability Act dealt with preventing discrimination in health care by employer provided health care plans. These sections stated that health care plans could not discriminate in providing benefits for a number of reasons. Included in the list of protected areas is "health status."
In the conference committee report that accompanied the legislation, the definition of "health status" was further clarified with the following provision: "The Committee notes that the inclusion of evidence of insurability in the definition of health status is intended to ensure, among other things, that individuals are not excluded from health coverage due to their participation in activities such as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing and other similar activities."
As the interim regulation was being developed, both the Motorcycle Riders Foundation (MRF) and the American Motorcyclist Association (AMA) submitted written comments to the Departments of Labor, HHS and Treasury. These comments were submitted to make sure the regulation writers were aware of the history and intent of the legislation. We wanted to make sure that the regulation writers made their interpretations of the legislative language with the conference committee report views in mind.
We were successful in the fact that the regulation writers included the language from the conference committee report in the interim rule. This is a major positive action, as the regulatory language in the rules often does not directly incorporate the conference committee report language. In this case the wording of the report language is quoted in the interim final rule.
However, they also raised some questions that will require motorcyclists to respond to before the final rule is issued later this year. Though the interim rule went into effect upon publication, there is a 90 day public comment period to address questions about the way the regulation writers interpreted the legislative language. Also, it is the period in which we must respond to issues the regulation writers have raised and requested additional public input to help them write provisions to be included in the final rule. The deadline for comments is July 7, 1997.
The main issue affecting motorcyclists on which the regulation writers have requested additional input is: "comments are requested on how future guidance should treat benefit limitation based on source of an injury." The MRF and AMA have learned that one interpretation that is being advocated by others is for a requirement that health care plans could not deny general plan coverage to a motorcyclist, but could deny coverage of injuries from motorcycle accidents. Of course, we know that both of those problems were what motorcyclists and Congress had addressed in the Health Insurance Portability and Accountability Act.
The legislation does contain provisions that would allow health care plans to not offer coverage for specific medical conditions (i.e. pregnancy, eye diseases, etc.). And, it appears, it is under this provision that the argument is being made to allow exclusion of motorcycle accident injuries from plan coverage.
It is the MRF's contention that this is wrong for two reasons. First, the legislative history is that motorcyclists specifically asked Congress to end the practices of employer provided health care plans denying coverage to motorcyclists and denying coverage for injuries resulting from a motorcycle accident. The legislative and conference committee language of the law is the result of Congress agreeing to address both of those problems. Hopefully, legislative history, intent and language is reason enough.
Second, a broken arm or collarbone is a medical condition. Riding a motorcycle is not a medical condition. So, it is MRF's contention that if broken arms and collarbones are medical conditions covered under the plan, then whether those medical conditions resulted from a motorcycle accident, ice skating or falling in the bath tub should not matter. Either, all, or none, should be covered. The MRF further maintains that limitations of coverage should not be placed on legal activities, such as whether or not the person was wearing a helmet if there was no law requiring them to wear one.
The MRF and AMA are developing a strategy for responding to the request for comments. In the next few weeks the State Motorcyclists' Rights Organizations (SMRO) will be contacted with requests for action. With a strong coordinated response motorcyclists will obtain an interpretation in the final rule that will ensure that the practice of discriminating against motorcyclists in employer provided health care plans is ended.
The Interim Final Rule was published in the April 8, 1997 Federal Register. You may access it online by doing the following:
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