Section 2708 of the Affordable Care Act (ACA) provides that group health insurers and group health plans may not impose a waiting period on participants if the waiting period is more than 90 days. The Internal Revenue Service, the Department of Labor, and the Department of Health and Human Services have issued temporary guidance to assist both grandfathered and non-grandfathered plans in complying with this standard. Because the guidance issued by the three agencies is substantially identical, this article references only the IRS guidance, published as IRS Notice 2012-59.
The ACA adopts the definition of “waiting period” stated at 42 U.S.C. § 2704(b)(4)). Under existing law, which was not changed by the ACA, the term waiting period means “the period that must pass … before the individual [who is a potential participant or benefi ciary] is eligible to be covered for benefi ts under the terms of the plan.” Under IRS Notice 2012-59, insurers and employers are advised that the IRS will consider a waiting period to be the time period that must pass before coverage for an employee who is otherwise eligible to enroll under the terms of the plan can become effective.
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