Health Care Reform - How Does 90-Day Waiting Period Rule Work for Multiemployer Welfare Plans?

[Übernerd]

It seems to me that this rule doesn't really work for multiemployer plans. § 2708 of the PPACA prohibits "excessive" waiting periods: "A group health plan and a health insurance issuer offering group health insurance coverage shall not apply any waiting period (as defined in section 2704(b)(4)) that exceeds 90 days."

90 days from what? The cross reference isn't very helpful. § 2704(b)(4) defines "waiting period" as follows: "The term ‘‘waiting period’’ means, with respect to a group health plan and an individual who is a potential participant or beneficiary in the plan, the period that must pass with respect to the individual before the individual is eligible to be covered for benefits under the terms of the plan."

How do we apply this 90-day rule to a multiemployer plan, where eligibility keys off of details of the employee's work history, rather than merely the passage of time? For example, assume that the plan says an employee is eligible for benefits after an employer has been obligated to contribute on his or her behalf for 6 months. I don't think reducing that 6 months to 90 days will work (and would have to be bargained for, anyway). There are all sorts of other complications (probationary periods in the CBA, etc.)

I can't find any guidance on this. Any comments would be appreciated. Thanks.

[Übernerd]

BTW, near the end of Notice 2011-36, the IRS acknowledged that this is an issue, which presumably means there is no clear guidance available.