Actively at Work - Eligibility Question

[Guest Kary]

We are a TPA in Missouri and have a client who does not have an Actively-at-Work clause in the plan document. Here is our situation:

Employee's date of hire was 5/9/01. The plan has a waiting period of 90 consecutive days, then they are eligible first of the month. Therefore, his effective date would be 9/1/01.

He worked from 5/9/01 to 8/17/01 at which time he was diagnosed with a brain tumor and has not returned to work. The client has already deducted a month's worth of premium from his payroll check.

Regarding the new HIPPA nondiscrimination regs which were effective 7/1/01 - I have a couple of questions:

1. Do they have to let him on the plan effective 9/1/01, and if so what would be his termination date as he is not going to be returning to work?

2. With the client not having an actively-at-work clause in their plan document, how do the new regs affect this situtation?

Thank you for your responses.

[Guest mmarin]

Here's my understanding of HIPAA's Nondiscrimination regulations:

1. Depending on how the plan defines "consecutive", there may already be a violation of HIPAA. The regs give an example that it would not be permissible to require xx days of "continuous" service before coverage begins. You have to treat days off of work during initial eligibility because of health conditions as if the person is actively at work. Therefore the employee probably has a right to coverage on 9/1/01. As far as termination, subject to any other legal requirements (i.e. COBRA, FMLA), coverage can be terminated just like any other employee who no longer meets minimum # of hours requirements or other Leave provisions.

[GBurns]

I am not aware of any new regs effective 7/01 that would change what has lomg been covered by HIPAA and the PHSA.

In general any actively -at-work requirement violates HIPAA. This was explined last year in HCFA Program Memorandum 00-04.

Any non-confiment requirement violates HIPAA and PHSA and was explained last year in HCFA Program Memorandum 00-01.

A good link to look at would be :

www.ebia.com/weekly/articles/HIPAA001005HCFAMemo.html