Monday, June 14, 2010

Administration Admits: Unions Are “Special”

To follow up on my earlier missive, the Administration’s Q&A document on this morning’s rule admits that union plans received a “special rule” to allow them to switch insurance plans in the coming years, yet retain their grandfathered status:

Q: How does this policy affect plans that are negotiated by unions – collectively bargained arrangements?

A: Health plans subject to collective bargaining agreements are generally able to maintain their grandfathered status through the end of the agreement.  The law and regulations also include a special rule for collectively bargained plans that gives additional flexibility to change insurers during the collective bargaining agreement in effect on the date that the Affordable Care Act was signed.  After that, collective bargaining agreements are subject to the same rules as other health plans.

Compare that language to the Administration’s fact sheet, which says that employer plans – except for union plans – cannot change insurance companies and maintain grandfathered status:

Cannot Change Insurance Companies.  If an employer decides to buy insurance for its workers from a different insurance company, this new insurer will not be considered a grandfathered plan.  This does not apply when employers that provide their own insurance to their workers switch plan administrators or to collective bargaining agreements.

To be clear, there is nothing in this section of the statute – Section 1251(d) regarding grandfathered plans, reproduced below – that required the Departments to exempt union plans from the rule that a change in insurance companies triggers a change in grandfathered status.  Likewise, there was nothing preventing the Departments from allowing all small businesses to change carriers without penalty.  Instead, the Administration just decided on its own that unions were “special,” and granted them an exemption.  Worse yet, because the Administration decided to publish this rule before putting out a proposal for comment through the normal regulatory process, there was ZERO transparency regarding this latest backroom deal.

(d) EFFECT ON COLLECTIVE BARGAINING AGREEMENTS.—In the case of health insurance coverage maintained pursuant to one or more collective bargaining agreements between employee representatives and one or more employers that was ratified before the date of enactment of this Act, the provisions of this subtitle and subtitle A (and the amendments made by such subtitles) shall not apply until the date on which the last of the collective bargaining agreements relating to the coverage terminates. Any coverage amendment made pursuant to a collective bargaining agreement relating to the coverage which amends the coverage solely to conform to any requirement added by this subtitle or subtitle A (or amendments) shall not be treated as a termination of such collective bargaining agreement.