"[T]he Departments intend to propose that coverage of additional categories of coverage would be considered to be designed to 'fill in the gaps' of the primary coverage only if the benefits covered by the supplemental insurance product are not an essential health benefit (EHB) in the State where it is being marketed.... Pending publication and finalization of the above proposed regulations, the Departments will not initiate an enforcement action if an issuer of group or individual health insurance coverage fails to comply with the provisions of the PHS Act, ERISA, and the Code ... with respect to health insurance coverage that [1] provides coverage of additional categories of benefits that are not EHB in the applicable State (as opposed to filling in cost-sharing gaps under the primary plan); [2] complies with the applicable regulatory requirements and meets all of the criteria in the existing guidance on 'similar supplemental coverage'; and [3] has been filed and approved with the State (as may be required under State law)."

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