TN Insurance Bulletin (2005-07-05): Eligibility of Former TennCare Enrollees to Obtain Health Insurance Coverage under the Tennessee Health Insurance Portability, Availability and Renewability Act

PHIL BREDESEN

GOVERNOR

TO:

FROM:

RE:

DATE:

STATE OF TENNESSEE

DEPARTMENT OF COMMERCE AND INSURANCE

500 JAMES ROBERTSON PARKWAY

NASHVILLE, TENNESSEE 37243-5065

615-741-6007

BULLETIN

All Accident and Health Insurers Doing Business in this State

Paula A. Flowers, Commissioner i &tAt• Q • ~

Department of Commerce and Insurance

PAULA A. FLOWERS

COMMISSIONER

Eligibility of Former TennCare Emollees to Obtain Health Insurance Coverage

under the Tennessee Health Insurance Portability, Availability and Renewability

Act

July 5, 2005

The purpose of this Bulletin is to communicate the Department's position regarding the

eligibility of former TennCare emollees to obtain health insurance coverage under the Tennessee

Health Insurance Portability, Availability and Renewability Act (hereinafter "HIP AA"), Tenn.

Code Ann. §§ 56-7-2801, et seq. Be advised that it is the Department's position that TennCare

coverage qualifies as "creditable coverage" under HIP AA and insurers should not, therefore,

discriminate against former emollees in providing them access to both group coverage as well as

individual HIP AA guaranteed issue plans.

1.

TennCare is Creditable Coverage

The Department's position concerning this issue has recently been addressed and

confirmed in an opinion issued by the Office of the Attorney General and Reporter, Opinion

Number 05-097, on June 20, 2005. A copy of the aforementioned opinion is attached hereto.

A.

Group Health Insurance Coverage

Therefore, if all of the eligibility requirements contained in Tenn. Code Ann. §

56-7-2803 are met, a former emollee is qualified to obtain group health insurance coverage.

Under this statute, a former emollee may apply for coverage under a group health plan for which

he or she otherwise qualifies as an employee within thirty (30) days of losing TennCare

coverage. The group health plan may not exclude coverage for preexisting medical conditions if

a former emollee was covered by TennCare within the periods specified in Tenn. Code Ann

up health insurance coverage.

Under this statute, a former emollee may apply for coverage under a group health plan for which

he or she otherwise qualifies as an employee within thirty (30) days of losing TennCare

coverage. The group health plan may not exclude coverage for preexisting medical conditions if

a former emollee was covered by TennCare within the periods specified in Tenn. Code Ann. §

56-7-2803.

B.

Individual Health Insurance Coverage

Additionally, if all of the eligibility requirements contained in Tenn. Code Ann. §

56-7-2809 are met, a former enrollee is qualified to obtain individual health insurance coverage.

Under this statute, a former enrollee may apply for coverage under an individual health plan if he

or she has had TennCare coverage (or other creditable coverage) for at least eighteen (18)

months with no gaps in coverage exceeding sixty-three (63) days. The individual health plan

may not impose any preexisting condition exclusion with respect to such enrollment. An insurer

failing to treat TennCare as creditable coverage may become subject to sanctions pursuant to

Tenn. Code Ann.§ 56-1-416.

2.

Insurer's Obligation to Determine HIP AA Eligibility ·

In addition, it has come to the Department's attention that some insurers and their

insurance producers may be avoiding their obligations under HIP AA by not informing a health

insurance applicant ofhis or her rights to such coverage. Pursuant to 45 CFR § 148.126, insurers

offering coverage in the individual market have an obligation to use "reasonable diligence" in

determining whether an applicant is an eligible individual. Specifically, 45 CFR § 148.126 states

the following:

§ 148.126 Determination of an eligible individual.

(a)

General rule. Each issuer offering health insurance coverage in the

individual market is responsible for determining whether an applicant for

coverage is an eligible individual as defined in § 148.103.

asonable diligence" in

determining whether an applicant is an eligible individual. Specifically, 45 CFR § 148.126 states

the following:

§ 148.126 Determination of an eligible individual.

(a)

General rule. Each issuer offering health insurance coverage in the

individual market is responsible for determining whether an applicant for

coverage is an eligible individual as defined in § 148.103.

(b)

Specific requirements.

(1)

The issuer must exercise reasonable diligence m making this

determination.

(2)

The issuer must promptly determine whether an applicant is an

eligible individual.

(3)

If an issuer determines that an individual is an eligible individual,

the issuer must promptly issue a policy to that individual.

(c)

Insufficient information- (1) General rule. If the information presented in

or with an application is substantially insufficient for the issuer to make the

determination described in paragraph (b )(2) of this section, the issuer may

immediately request additional information from the individual, and must act

promptly to make its determination after receipt of the requested information.

Be advised that it is the Department's position that an insurer does not exercise

"reasonable diligence" unless it makes reasonable and continuing efforts to determine whether an

applicant for any type of coverage in the individual market (including medically underwritten

and conversion products) is an eligible individual. This requirement applies regardless of an

applicant's knowledge of his or her rights under the statute or if an applicant specifically applied

for a HIP AA product. Additionally, reliance by an insurer on its producers does not constitute

2

ther an

applicant for any type of coverage in the individual market (including medically underwritten

and conversion products) is an eligible individual. This requirement applies regardless of an

applicant's knowledge of his or her rights under the statute or if an applicant specifically applied

for a HIP AA product. Additionally, reliance by an insurer on its producers does not constitute

2

"reasonable diligence" unless an insurer makes reasonable and continuing efforts to ensure that

its producers are in compliance with the regulations. While many insurers may have conducted

initial producer training concerning HIPAA compliance in 1997 or 1998, all insurers should

continue to provide in-service training on how to screen for HIP AA eligibility and what the law

requires once an eligible individual is identified. An insurer failing to exercise "reasonable

diligence" pursuant to 45 CFR § 148.126 may become subject to sanctions pursuant to Tenn.

Code Ann. § 56-1-416.

As a result of the current disemollment process being conducted by TennCare, many

former emollees will only have access to private health insurance through HIP AA. As such, the

Department will closely monitor and investigate any complaints it receives concerning insurers

not complying with the portability and availability requirements of HIP AA. Insurers should

expect any violations of HIP AA to be treated quickly and severely.

Should you have any questions concerning the position set forth in this Bulleti11-, or its

application, please contact Larry C. Knight, Jr., Assistant Commissioner for the Insurance

Division, Fourth Floor, Davy Crockett Tower, 500 James Robertson Parkway, Nashville,

Tennessee, 37243, and/or telephone number (615) 741-2176.

JAS/

3

any violations of HIP AA to be treated quickly and severely.

Should you have any questions concerning the position set forth in this Bulleti11-, or its

application, please contact Larry C. Knight, Jr., Assistant Commissioner for the Insurance

Division, Fourth Floor, Davy Crockett Tower, 500 James Robertson Parkway, Nashville,

Tennessee, 37243, and/or telephone number (615) 741-2176.

JAS/

3

STATE OF TENNESSEE

OFFICE OF THE

ATTORNEY GENERAL

POBOX20207

NASHVILLE, TENNESSEE 37202

June 20, 2005

Opinion No. 05-097

Alternative Coverage for Individuals Disenrolled frorri TennCare

QUESTIONS

1.

Does coverage under TennCare qualify as "creditable coverage" under Tenn. Code

Ann. §§ 56-7-2801, et seq.?

2.

Is a disenrolled TennCare enrollee qualified to obtain group health insurance in

Tennessee?

3.

Is a disenrolled TennCare enrollee qualified to obtain individual health insurance in

Tennessee?

OPINIONS

1.

Yes.

2.

A disenrolled TennCare enrollee is entitled to enroll for coverage under group health

insurance as provided in Tenn. Code Ann. § 56-7-2803. Under that provision, the disenrollee may

apply for coverage under a group plan for which he or she otherwise qualifies as an employee within

thirty days of losing TennCare coverage. The plan may not exclude coverage for preexisting

medical conditions if the individual was covered by TennCare within the periods specified in Tenn.

Code Ann. §§ 56-7-2801, et seq.

3.

The key issue in this question is whether TennCare coverage qualifies as creditable

coverage under a "group health plan" within the meaning of Tenn. Code Ann.§ 56-7-2809(b)(1).

Neither the statutory language nor the legislative history of the statute as amended is entirely clear.

But we think the courts would interpret the statute to include creditable coverage under TennCare

as creditable coverage under a "group health plan" within the meaning of Tenn. Code Ann. § 56-7-

2809(b )(1 )

e under a "group health plan" within the meaning of Tenn. Code Ann.§ 56-7-2809(b)(1).

Neither the statutory language nor the legislative history of the statute as amended is entirely clear.

But we think the courts would interpret the statute to include creditable coverage under TennCare

as creditable coverage under a "group health plan" within the meaning of Tenn. Code Ann. § 56-7-

2809(b )(1 ). Under this interpretation, a disenrolled TennCare enrollee would be entitled to obtain

individual health care insurance as set forth in Tenn. Code Ann. § 56-7-2809.

ANALYSIS

This opinion concerns treatment of disenrolled TennCare enrollees under Tenn. Code Ann.

§§ 56-7-2801, et seq. This statutory scheme represents Tennessee's implementation of requirements

Page2

under the Health Insurance Portability and Accountability Act, U.S. P.L. 104-191, commonly

referred to as "HIP AA." This act gives states the option of implementing and enforcing the

portability requirements under the federal law, or allowing federal authorities to do so. 42 U.S. C.

§ 300gg-22 (group health insurance); 42 U.S. C. § 300gg-61 (individual health insurance). The state

law was enacted as 1997 Tenn. Pub. Acts Ch. 157. The legislative history of the 1997 act provides

no guidance on the issues raised in this request.

Section 15 ofthe 1997 state act, codified at Tenn. Code Ann.§ 56-7-2814, provides:

It is the intent of this part to meet the minimum standards established

by the federal Health Insurance Portability and Accountability Act of

1996 and the rules and regulations to be promulgated by federal

authorities in connection with that act.

The commissioner is,

therefore, authorized to promulgate rules and regulations, pursuant to

the Uniform Administrative Procedures Act, compiled in Title 4,

Chapter 5, as may be necessary to ensure compliance with the federal

law as well as those rules necessary to carry out the proper

administration of this part.

1997 Tenn. Pub. Acts Ch. 157, Section 15

horities in connection with that act.

The commissioner is,

therefore, authorized to promulgate rules and regulations, pursuant to

the Uniform Administrative Procedures Act, compiled in Title 4,

Chapter 5, as may be necessary to ensure compliance with the federal

law as well as those rules necessary to carry out the proper

administration of this part.

1997 Tenn. Pub. Acts Ch. 157, Section 15. In fact, as discussed below, the federal law does not

explicitly include persons who have been disenrolled from Medicaid within some of the categories

protected under the new act. It is not clear, therefore, whether the state law in fact goes beyond the

minimum standards set by the federal law. But the state law was amended in 2001 to include

individuals who have lost TennCare coverage where the federal law does not. 2001 Tenn. Pub. Acts

Ch. 262. The legislative history of the 2001 act reflects that it was intended to give TennCare

recipients the same privileges as individuals who lose coverage under an employee health plan. The

legislative history for both the 1997 and the 2001 acts reflects that the sponsors thought the bill was

necessary to bring the State into compliance with HIP AA regulations. The state law has also

included a broader definition of"group health plan" than does the federal law since the state law was

passed in 1997. Despite section 15 of the 1997 act, . therefore, the statutory language and the

legislative history of the 2001 amendment support including TennCare coverage for certain purposes

even if the federal law does not.

1. Creditable Coverage

The first question is whether TennCare coverage is "creditable coverage" under Tenn. Code

Ann.§§ 56-7-2801, et seq. Tenn. Code Ann. § 56-7-2802(6)(A) states:

[As used in this part, unless the context otherwise requires:]

"Creditable coverage" means, with respect to an individual, coverage of the

individual under any of the following:

* * * *

Page3

ral law does not.

1. Creditable Coverage

The first question is whether TennCare coverage is "creditable coverage" under Tenn. Code

Ann.§§ 56-7-2801, et seq. Tenn. Code Ann. § 56-7-2802(6)(A) states:

[As used in this part, unless the context otherwise requires:]

"Creditable coverage" means, with respect to an individual, coverage of the

individual under any of the following:

* * * *

Page3

(iv) The Social Security Act, Title XIX, other than coverage consisting solely of

benefits under§ 1928;

* * * *

(ix) A public health plan;

A similar definition of "creditable coverage" appears in the federal HIPAA law. 42 U.S.C. §

300gg(c)(1). The Social Security Act, Title XIX, refers to the Medicaid law, 42 U.S. C. § 1396. The

TennCare Program is authorized under those provisions. The statute excludes "coverage consisting

solely ofbenefits under§ 1928" of the Social Security Act. (Emphasis added). This provision refers

to the pediatric vaccination program authorized under 42 U.S. C. § 1396s. Since TennCare is not

"coverage consisting solely of benefits" under this pediatric vaccination program, it is clearly a form

of "creditable coverage" under the Tennessee insurance portability law as well as the federal HJP AA

law. In fact, the TennCare Bureau already issues a Certificate of Group Health Plan Coverage that

refers to TennCare coverage as "creditable coverage."

2. Ability ofDisenrolled TennCare Enrollee to Obtain Group Health Insurance

The second question is whether a disenrolled TennCare enrollee is qualified to obtain group

health insurance in Tennessee. The statute defines "group health insurance coverage" to mean, in

connection with a group health plan, health insurance coverage offered in connection with such plan.

Tenn. Code Ann. § 56-7-2802(13)

. Ability ofDisenrolled TennCare Enrollee to Obtain Group Health Insurance

The second question is whether a disenrolled TennCare enrollee is qualified to obtain group

health insurance in Tennessee. The statute defines "group health insurance coverage" to mean, in

connection with a group health plan, health insurance coverage offered in connection with such plan.

Tenn. Code Ann. § 56-7-2802(13). The term "group health plan":

means an employee welfare benefit plan (as defined in ERISA, §

3(1)) to the extent that the plan provides medical care and including

items and services paid for as medical care to employees or their

dependents (as defined under the terms of the plan) directly or

through insurance, reimbursement, or otherwise. A program under

which creditable coverage is provided shall be treated as a group

health plan for the purposes of applying this part.

Tenn. Code Ann. § 56-7-2802(14). (Emphasis added). The italicized sentence does not appear in

the definition of "group health plan" in the federal law. 42 U.S. C. § 300gg-91(a)(1). The term

"employee welfare benefit plan" is defined in 29 U.S. C. § 1002 broadly to include "any plan, fund,

or program which was ... established or maintained by an employer or an employee organization,

or by both, to the extent that such plan, fund, or program was established or is maintained for the

purpose of providing for its participants or their beneficiaries, through the purchase of insurance or

otherwise, (A) medical, surgical, or hospital care or benefits." 29 U.S. C. § 1 002(1 ).

Tenn. Code Ann. § 56-7-2803limits the ability of a group health plan or a "health insurance

issuer offering group health insurance coverage" to impose a preexisting condition exclusion with

respect to a participant or beneficiary. The term "health insurance issuer" means:

an entity subject to the insurance laws of this state, or subject to the

jurisdiction of the commissioner, that contracts or offers to contract

7-2803limits the ability of a group health plan or a "health insurance

issuer offering group health insurance coverage" to impose a preexisting condition exclusion with

respect to a participant or beneficiary. The term "health insurance issuer" means:

an entity subject to the insurance laws of this state, or subject to the

jurisdiction of the commissioner, that contracts or offers to contract

Page4

to provide health insurance coverage, including but not limited to an

insurance company, a health maintenance organization and a

nonprofit hospital and medical service corporation.

"Health

insurance issuer" does not include a group health plan.

Tenn. Code Ann. § 56-7-2802 (16). The term "health insurance coverage" means:

Benefits consisting of medical care (provided directly, through

insurance or reimbursement, or otherwise and including items and

services paid for as medical care) under any policy, certificate, or

agreement offered by a health insurance issuer.

Tenn. Code Ann. § 56-7-2802(15). Presumably the term "health insurance issuer offering group

health insurance coverage" refers to health insurance issued on a group basis by a health insurance

issuer, which term expressly excludes employee welfare benefit plans.

The limit on imposing preexisting condition exclusions protects both a "participant" and a

"beneficiary." The term "participant" has the meaning given such term under ERISA, § 3(7), now

codified at 29 U.S.C § 1002(7). Tenn. Code Ann. § 56-7-2802(26). Under that statute:

The term "participant" means any employee or former employee of

an employer, or any member or former member of an employee

organization, who is or may become eligible to receive a benefit of

any type from an employee benefit plan which covers employees of

such employer or members of such organization, or whose

beneficiaries may be eligible to receive any such benefit.

The term "beneficiary" has the meaning given such term under ERISA § 3(8), now codified at 29

U.S. C. § 1 002(8). Tenn. Code Ann

er of an employee

organization, who is or may become eligible to receive a benefit of

any type from an employee benefit plan which covers employees of

such employer or members of such organization, or whose

beneficiaries may be eligible to receive any such benefit.

The term "beneficiary" has the meaning given such term under ERISA § 3(8), now codified at 29

U.S. C. § 1 002(8). Tenn. Code Ann. § 56-7-2802(2). Under that ERISA statute:

The term "beneficiary" means a person designated by a participant,

or by the terms of an employee benefit plan, who is or may become

entitled to a benefit thereunder.

Tenn. Code Ann. § 56-7-2803(a) restricts the conditions under which a group health plan and

health insurance issuer offering group health insurance coverage may impose a preexisting condition

exclusion on participants and beneficiaries. The exclusion may not extend for a period of more than

twelve months, or eighteen in the case of a late enrollee after the enrollment date, and this period

must be reduced by the aggregate of periods of creditable coverage applicable to the participant or

beneficiary as of the enrollment date. Group health plans and health insurance issuers offering

group health insurance coverage must provide certification of creditable coverage to individuals who

cease to become covered under the plan. Because of the italicized sentence in the definition of

"group health plan," this requirement extends to TennCare. Again, we are informed that TennCare

has been routinely issuing certificates of creditable coverage to TennCare disenrollees.

Page 5

Subsection (h) of Tenn. Code Ann. § 56-7-2803 sets special emollment periods for

individuals who opted out of a group health insurance plan because other coverage was available,

and then lost the alternate coverage. The statute, as amended in 2001, explicitly includes TennCare

within the definition of"health insurance coverage." The statute provides in relevant part:

re disenrollees.

Page 5

Subsection (h) of Tenn. Code Ann. § 56-7-2803 sets special emollment periods for

individuals who opted out of a group health insurance plan because other coverage was available,

and then lost the alternate coverage. The statute, as amended in 2001, explicitly includes TennCare

within the definition of"health insurance coverage." The statute provides in relevant part:

(1) FOR INDIVIDUALS LOSING OTHER COVERAGE. As used

in this subsection, the phrase "health insurance coverage" shall

include the TennCare program as administered by the department of

finance and administration.

(2) A group health plan, and a health insurance issuer offering group

health insurance coverage in connection with a group health plan,

shall permit an employee who is eligible, but not emolled, for

coverage under the terms of the plan ... to emoll for coverage under

the terms of the plan if each of the following conditions is met:

(A) The employee or dependent was covered under a group health

plan or had health insurance coverage at the time coverage was

previously offered to the employee or dependent.

(B) The employee stated in writing at such time that coverage under

a group plan or health insurance coverage was the reason for

declining emollment, but only if the plan sponsor or issuer (if

applicable) required such a statement at such time and provided the

employee with notice of such requirement (and the consequences of

such requirement) at such time.

·

(C) The employee's or dependent's coverage described m

subdivision (h)(2)(A):

that coverage under

a group plan or health insurance coverage was the reason for

declining emollment, but only if the plan sponsor or issuer (if

applicable) required such a statement at such time and provided the

employee with notice of such requirement (and the consequences of

such requirement) at such time.

·

(C) The employee's or dependent's coverage described m

subdivision (h)(2)(A):

(i) was under a COBRA continuation provision and the

coverage under such provision was exhausted; or

(ii) was not under such a provision and either the coverage

was terminated as a result of loss of eligibility for the coverage ... or

employer contributions toward such coverage were terminated.

(D) Under the terms of the plan, the employee requests such

emollment not later than thirty (30) days after one (1) of the events

described in subdivision (h)(2)(C).

(Emphasis added). The statute includes provisions for dependents of individuals qualified for group

health plan coverage also to receive coverage. Again, the parallel provision in federal law does not

Page 6

include the express reference to TennCare, or any reference to Medicaid at all. 42 U.S.C. §

300gg(f). Subdivision (h)(1) was added by a 2001 amendment. 2001 Tenn. Pub. Acts Ch. 262.

Representative Hargett, who sponsored the bill in the House, explained it to the House Corrnnerce

Committee as follows:

What the bill does as amended is, loss of TennCare eligibility

currently does not qualify as a special enrollment period under state

HIP AA statutes.

Therefore, a person who loses a TennCare

eligibility would not be able to immediately enroli in their employee

-

possible employee insurance program, and this will rectify that

problem.

House Corrnnerce Committee, April24, 2001 (remarks ofRep. Hargett)

bill does as amended is, loss of TennCare eligibility

currently does not qualify as a special enrollment period under state

HIP AA statutes.

Therefore, a person who loses a TennCare

eligibility would not be able to immediately enroli in their employee

-

possible employee insurance program, and this will rectify that

problem.

House Corrnnerce Committee, April24, 2001 (remarks ofRep. Hargett).

Senator Clabough explained the bill to the Senate Finance Ways and Means Committee as

follows:

This bill came through our commerce corrnnittee, and the bill gives

TennCare recipients the same privileges as other people under the

group insurance plans, and it brings us in compliance with the

HIP AA. If a person has insurance for twelve months and then has

been without coverage for no more than six months, they cannot be

required to wait for a special enrollment period or be denied because

of a preexisting condition.

Senate Finance Ways and Means Committee, May 8, 2001 (remarks of Sen. Clabough).

Legislative history of the bill, therefore, reflects the legislators' intent to treat loss of

TennCare the same as loss of coverage under an employer's group health plan. Under state law,

· therefore, a disenrolled TennCare enrollee is entitled to enroll for coverage under group health

insurance as provided in Tenn. Code Ann. § 56-7-2803. Under that provision, the disenrollee may

apply for coverage under a group plan for which he or she otherwise qualifies as an employee within

thirty days of losing TennCare coverage. The plan may not exclude coverage for preexisting

medical conditions if the individual was covered by TennCare within the periods specified in Tenn.

Code Ann.§§ 56-7-2801, etseq. 1

3. Availability ofindividual Health Care Insurance

The last question is whether a disenrolled TennCare enrollee is qualified to obtain individual

health insurance in Tennessee under Tenn, Code Ann. §§ 56-7-2801, et seq. The applicable state

statute is Tenn. Code Ann. § 56-7-2809

ons if the individual was covered by TennCare within the periods specified in Tenn.

Code Ann.§§ 56-7-2801, etseq. 1

3. Availability ofindividual Health Care Insurance

The last question is whether a disenrolled TennCare enrollee is qualified to obtain individual

health insurance in Tennessee under Tenn, Code Ann. §§ 56-7-2801, et seq. The applicable state

statute is Tenn. Code Ann. § 56-7-2809. Under section (a) of that statute, "each health insurance

issuer that offers individual health insurance coverage in Tennessee must offer to accept for

1 To the extent state law in this respect goes beyond federal HIPAA protections, it may be preempted with

respect to some employee benefit plans subject to regulation under federal ERISA law.

Page7

enrollment every eligible individual who applies for coverage without imposing any preexisting

condition exclusion with respect to such coverage." (Emphasis added). Under this provision,

anyone who qualifies as an "eligible individual" is entitled to purchase individual health insurance

from an insurance company that offers such insurance in Tennessee. The insurance company may

not exclude coverage for any preexisting medical conditions. It should be noted that the statute does

not attempt to limit the price the insurer can charge for the insurance. The issue then becomes

whether a TennCare disenrollee is an "eligible individual" within the meaning of the statute. The

statute defines this term as follows:

offers such insurance in Tennessee. The insurance company may

not exclude coverage for any preexisting medical conditions. It should be noted that the statute does

not attempt to limit the price the insurer can charge for the insurance. The issue then becomes

whether a TennCare disenrollee is an "eligible individual" within the meaning of the statute. The

statute defines this term as follows:

(b) "eligible individual" means an individual:

(1) For whom, as of the date on which the individual seeks coverage

under this section, the aggregate of periods of creditable coverage is

eighteen (18) or more months and whose most recent prior creditable

coverage was under a group health plan, governmental plan, or

church plan (or health insurance coverage offered in connection with

any such plan);

(2) Who is not eligible for coverage under a group health plan, the

Social Security Act, Part A or Part B of Title XVTI, or state coverage

pursuant to the Social Security Act, Title XIX (or any successor

program), and does not have other health insurance coverage;

(3) Whose most recent coverage within the coverage period

described in subdivision (b)(1) was not terminated based on

nonpayment of premiums or fraud; and

( 4) Who, if offered the option of continuation coverage, accepted

the coverage and exhausted the coverage.

Tenn. Code Ann. § 56-7-2809(b) (emphasis added).

The key issue is whether creditable coverage under TennCare qualifies as a "group health

plan, governmental plan, or church plan" within the meaning of Tenn. Code Ann. § 56-7-2809(b )(1 ).

As discussed above, the term "governmental plan" as used in the statute refers to a plan offered to

governmental employees. Nor would TennCare qualify as a "church plan." The question then

becomes whether TennCare qualifies as a "group health plan" within the meaning of this statute.

Neither the legislative history of the state law nor the state statutory language is entirely clear

09(b )(1 ).

As discussed above, the term "governmental plan" as used in the statute refers to a plan offered to

governmental employees. Nor would TennCare qualify as a "church plan." The question then

becomes whether TennCare qualifies as a "group health plan" within the meaning of this statute.

Neither the legislative history of the state law nor the state statutory language is entirely clear. But

we think the courts would interpret the statute to include creditable coverage under TennCare as

creditable coverage under a "group health plan" within the meaning of Tenn. Code Ann. § 56-7-

2809(b)(1). The definition of"group health plan" in Tenn. Code Ann.§ 56-7-2802(14) supports this

interpretation. The last sentence of that definition provides: "A program under which creditable

coverage is provided shall be treated as a group health plan for the purposes of applying this part."

Page 8

Neither the legislative history ofthe state law nor the state statutory language is entitely cleac Bu.t

we think the courts would interpret the statute to include creditable coverage under TcnnCarc as

creditable coverage u11der a "group health plan" within the meaning of Tenn. Code Ann.§ 56-7-

2809(b)(l). The definition of""group health plan" in Tenn. Code .A.nn. § 56-7-2802(14) supports this

interpretation. Tbe last sentence ofthat definition provides: "A program lmder which creditable

coverage is provided shall be trea.ted as a grou.p health plan for the purposes of applying this pari."

(Emphasis added). Further, as discussed above, the General. Assembly amended the statute i.n 200.1

to provide that an individual dis.enrolled from TennCarc m.ay app.ly for coverage under au

employment ptan. that he or she had earljer elected not to enroll in because of the avai.lability of

TennCare. The statute, therefore, now treats coverage under TennCare for this purpose the same as

coverage under an employee group insurance plan

above, the General. Assembly amended the statute i.n 200.1

to provide that an individual dis.enrolled from TennCarc m.ay app.ly for coverage under au

employment ptan. that he or she had earljer elected not to enroll in because of the avai.lability of

TennCare. The statute, therefore, now treats coverage under TennCare for this purpose the same as

coverage under an employee group insurance plan. This change, along with the definition of gr.-oup

health plan) strengthens the argumcmt that TermCaTe coverage should be treated as "'creditable

coverage under a group health plan" witl1in.the definition of "eligible individuaL" Under th.is

jnterpretation, a discnroJl.cd TennCare cnrol.lec would be entitled to purchase individual insurance

as provided in Tenn. Code Ann.§ 56-7-2809.

Requested by:

Honorab 1e M.D. Goetz, Jr.

PAUL G. SUMMERS

Attorney General

Clndd£~

MICHAEL E. MOORE

Solicitor General

A,,,

Senior Counsel

Commissioner of Finan.ce aud Administration

State Capitol

Nashville, TN 3 7243-0285

STATE OF TENNESSEE

DEPARTMENT OF COMMERCE AND INSURANCE

CONSUMER INSURANCE SERVICES

DAVY CROCKETT TOWER, 4TH FLOOR

500 James Robertson Parkway

Nashville, TN 37243-0574

TELEPHONE: (615) 741-2218 I (800) 342-4029 *FAX: (615) 532-7389

HIPAA PLANS AND INDIVIDUAL HEALTH INSURERS

If you are losing TennCare coverage, or leaving an employer sponsored group insurance plan (after

exhausting your COBRA benefits, state continuation or neither if continuation is not available), you have

certain rights under state and federal HIPAA laws (Health Insurance Portability and Accountability Act). If

you have had eighteen (18) months of prior health insurance coverage with no gaps exceeding sixty-three

ennCare coverage, or leaving an employer sponsored group insurance plan (after

exhausting your COBRA benefits, state continuation or neither if continuation is not available), you have

certain rights under state and federal HIPAA laws (Health Insurance Portability and Accountability Act). If

you have had eighteen (18) months of prior health insurance coverage with no gaps exceeding sixty-three

(63) days, then you cannot be denied coverage due to a pre-existing medical condition. However. you must

seek new health insurance coverage immediately upon termination of your prior coverage in order to be

protected. The following deadlines are critical:

1.

Group plans- Even if you were on TennCare a short amount of time, you may be eligible to join a

group plan offered by your or your spouse's employer. You have thirty (30) days after termination

of your prior coverage to join a group plan. After this 30 day period, you may be deemed

uninsurable.

2.

Individual plans -

You are eligible to purchase an individual plan if you had 18 months

continuous coverage under TennCare or another group plan. You have sixty-three (63) days after

termination of your prior coverage to purchase an individual insurance plan. After this 63 day

period, you may be deemed uninsurable.

3.

Pre-existing condition waiting periods - If you have had eighteen (18) months or more of

continuous health insurance coverage, then you cannot be subjected to a pre-existing condition

waiting period. If applying for a group plan, any period of coverage less than 18 months may act

as a "credit'' against any pre-existing condition waiting periods imposed by your new health

insurance carrier.

The following list of companies all offer individual plans, including HIPAA plans, in Tennessee.

When

calling for price quotes, you need to specify that you are seeking a "HIPAA" or "guaranteed issue" plan.

This list may not be complete and changes in those companies offering individual health products occur

frequently

g condition waiting periods imposed by your new health

insurance carrier.

The following list of companies all offer individual plans, including HIPAA plans, in Tennessee.

When

calling for price quotes, you need to specify that you are seeking a "HIPAA" or "guaranteed issue" plan.

This list may not be complete and changes in those companies offering individual health products occur

frequently. We are not recommending any company on this list. For further information, please contact

the Consumer Insurance Section at the number listed above.

American Medical Security Life Ins. Co

3100 AMS Blvd, P.O. Box 19032

Green Bay, WI 54307-9032

(800) 232-5432

www.eams.com

American National Life Ins. Co. of Texas

One Moody Plaza

Galveston, TX 77550-7999

(800) 899-6503

www.anico.com

June,2005

American Republic Ins. Co.

P. 0. Box 1

Des Moines, lA 50334

(800) 247-2190

www.aric.com

Blue Cross and Blue Shield of Tennessee

801 Pine Street

Chattanooga, TN 37 402

(800) 565-9140

www.bcbst.com

Celtic Insurance Company

233 South Wacker Dr., Suite 700

Chicago, IL 60606-6393

(800) 477-7990

www.celtic-net.com

Central Reserve Life Insurance Co.

17800 Royalton Rd.

Strongsville, OH 44136

(800) 321-3997

www.centralreserve.com

Continental General Ins. Co.

8901 Indian Hills Drive

Omaha, NE 68114

(800) 545-8905

www.continentalqeneral.com

Empire Fire & Marine Ins. Company

1381 0 First National Bank Parkway

Omaha, NE 68154-5202

(800) 878-0011

www. usselectmarketinq .om

Fortis Benefits Insurance Company

500 Bielenberg Drive

Woodbury, Minnesota 55125

(866) 884-4636

www.assuranthealth.com

Fortis Ins. Co.

P. 0. Box 3050

Milwaukee, WI 53201-3050

(866) 884-4636

www.assu ranthealth.com

Freedom Life Ins. Company of America

110 West Seventh St., Suite 300

Ft. Worth, TX 76102

(800) 387-9027

www.freedomlife.net

Golden Rule Insurance Company

712 Eleventh Street

Lawrenceville, IL 62439-2395

(800) 444-8990

www.qoldenrule.com

Humana Ins. Co.

P.O. Box 30111

Tampa, FL 33630-3111

ortis Ins. Co.

P. 0. Box 3050

Milwaukee, WI 53201-3050

(866) 884-4636

www.assu ranthealth.com

Freedom Life Ins. Company of America

110 West Seventh St., Suite 300

Ft. Worth, TX 76102

(800) 387-9027

www.freedomlife.net

Golden Rule Insurance Company

712 Eleventh Street

Lawrenceville, IL 62439-2395

(800) 444-8990

www.qoldenrule.com

Humana Ins. Co.

P.O. Box 30111

Tampa, FL 33630-3111

(866) 672-9165

www.humana.com

MEGA Life and Health Ins. Company

P .0. Box 982010

North Richland Hills, TX 76182-801 0

(800) 527-5504

www.meqainsurance.com

Mid-West National Life Ins. Co. of TN

4001 McEwen Rd., Suite 200

Dallas, TX 75244

(800) 729-2302

www.healthinsuranceandmore.com

National Foundation Life Ins. Co.

110 West Seventh St., Suite 300

Ft. Worth, TX 76102

(800) 221-9039

www.freedomlife.net

Physicians Mutual Ins. Co.

2600 Dodge Street

Omaha, NE 68131

(800) 932-7642

www.physiciansmutual.com

United American Insurance Co.

P. 0. Box 810

Dallas, TX 75221-081 0

(972) 529-5085

www.unitedamerican.com

World Insurance Company

P. 0. Box 3160

Omaha, NE 68103-0160

(800) 786-7557

www.worldinsco.com

June,2005