§ 58‑68‑30. Increased portability through limitation on preexisting condition exclusions.
(a) Limitation onPreexisting Condition Exclusion Period; Crediting for Periods of PreviousCoverage. Subject to subsection (d) of this section, a group health insurermay, with respect to a participant or beneficiary, impose a preexistingcondition exclusion only if:
(1) The exclusionrelates to a condition, whether physical or mental, regardless of the cause ofthe condition, for which medical advice, diagnosis, care, or treatment wasrecommended or received within the six‑month period ending on theenrollment date.
(2) The exclusionextends for a period of not more than 12 months, or 18 months in the case of alate enrollee, after the enrollment date.
(3) The period of anypreexisting condition exclusion is reduced by the aggregate of the periods ofcreditable coverage, if any, applicable to the participant or beneficiary as ofthe enrollment date.
(b) Definitions. Forthe purposes of this Part:
(1) Enrollment date. Withrespect to an individual covered under a group health insurance plan, the dateof enrollment of the individual in the coverage or, if earlier, the first dayof the waiting period for the enrollment. An individual's enrollment date doesnot change if the individual receiving benefits under a group health insuranceplan changes benefit packages or if the plan changes health insurers.
(2) Late enrollee. Withrespect to coverage under a group health insurance plan, a participant orbeneficiary who enrolls under the plan other than during:
a. The first period inwhich the individual is eligible to enroll under the plan, or
b. A special enrollmentperiod under subsection (f) of this section.
(3) Preexistingcondition exclusion.
a. In general. "Preexistingcondition exclusion" means, with respect to coverage, a limitation orexclusion of benefits relating to a condition based on the fact that thecondition was present before the effective date of coverage under a grouphealth plan or group health insurance coverage, whether or not any medicaladvice, diagnosis, care, or treatment was recommended or received before thatday. A preexisting condition exclusion includes any exclusion applicable to anindividual as a result of information relating to an individual's health statusbefore the individual's effective date of coverage under a group health plan orgroup health insurance coverage, such as a condition identified as a result ofa preenrollment questionnaire or physical examination given to the individual,or review of medical records relating to the preenrollment period.
b. Treatment of geneticinformation. Genetic information shall not be treated as a conditiondescribed in subdivision (a)(1) of this subsection in the absence of adiagnosis of the condition related to the information.
(4) Waiting period.
a. With respect to agroup health insurance plan and an individual who is a potential participant orbeneficiary in the plan, the period that must pass with respect to theindividual before the individual is eligible to be covered for benefits underthe terms of the plan.
b. If an employee ordependent enrolls as a late enrollee or special enrollee, any period before thelate or special enrollment is not a waiting period.
c. If an individualseeks individual health insurance coverage, a waiting period begins on the datethe individual submits a substantially complete application and ends on: (i)the date coverage begins if the application results in coverage; or (ii) thedate on which the application is denied by the health insurer or the date onwhich the offer for coverage lapses if the application does not result incoverage.
(1) Creditable coveragedefined. For the purposes of this Article, "creditable coverage"means, with respect to an individual, coverage of the individual under any ofthe following:
a. A group health plan.
b. Health insurancecoverage without regard to whether the coverage is offered in the group market,the individual market, or otherwise.
c. Part A or part B oftitle XVIII of the Social Security Act.
d. Title XIX of theSocial Security Act, other than coverage consisting solely of benefits undersection 1928.
e. Chapter 55 of title10, United States Code.
f. A medical careprogram of the Indian Health Service or of a tribal organization.
g. A State healthbenefits risk pool.
h. A health planoffered under chapter 89 of title 5, United States Code.
i. A public healthplan (as defined in federal regulations).
j. A health benefitplan under section 5(e) of the Peace Corps Act (22 U.S.C. § 2504(e)).
k. Title XXI of theSocial Security Act (State Children's Health Insurance Program).
"Creditablecoverage" does not include coverage consisting solely of coverage ofexcepted benefits. However, short‑term limited‑duration healthinsurance coverage shall be considered creditable coverage for purposes of thissection.
(2) Not counting periodsbefore significant breaks in coverage.
a. In general. Aperiod of creditable coverage shall not be counted, with respect to enrollmentof an individual under a group health insurance plan, if, after the period andbefore the enrollment date, there was a 63‑day period during all of whichthe individual was not covered under any creditable coverage.
b. Waiting period nottreated as a break in coverage. For the purposes of sub‑subdivision a.of this subdivision and subdivision (d)(4) of this subsection, any period thatan individual is in a waiting period for any coverage under a group health insuranceplan or is in an affiliation period shall not be taken into account indetermining the continuous period under sub‑subdivision a. of thissubdivision.
c. Time spent on shortterm limited duration health insurance not treated as a break in coverage. Forthe purposes of sub‑subdivision a. of this subdivision, any period thatan individual is enrolled on a short term limited duration health insurancepolicy shall not be taken into account in determining the continuous periodunder sub‑subdivision a. of this subdivision so long as the period oftime spent on the short term limited duration health insurance policy orpolicies does not exceed 12 months.
d. For an individualwho elects COBRA continuation coverage during the second election periodprovided under the Trade Act of 2002, the days between the date the individuallost group health plan coverage and the first day of the second COBRA electionperiod shall not be considered when determining whether a significant break incoverage has occurred.
(3) Method of creditingcoverage.
a. Standard method. Exceptas otherwise provided under sub‑subdivision b. of this subdivision forthe purposes of applying subdivision (a)(3) of this subsection, a group healthinsurer shall count a period of creditable coverage without regard to thespecific benefits covered during the period.
b. Election ofalternative method. A group health insurer may elect to apply subdivision(a)(3) of this subsection based on coverage of benefits within each of severalclasses or categories of benefits specified in federal regulations rather thanas provided under sub‑subdivision a. of this subdivision. This electionshall be made on a uniform basis for all participants and beneficiaries. Underthis election a group health insurer shall count a period of creditablecoverage with respect to any class or category of benefits if any level ofbenefits is covered within the class or category.
c. Health insurernotice. In the case of an election under sub‑subdivision b. of thissubdivision with respect to health insurance coverage in the small or largegroup market, the health insurer: (i) shall prominently state in any disclosurestatements concerning the coverage, and to each employer at the time of theoffer or sale of the coverage, that the health insurer has made the election,and (ii) shall include in the statements a description of the effect of theelection.
(4) Establishment ofperiod. Periods of creditable coverage for an individual shall be establishedthrough presentation of certifications described in subsection (e) of thissection or in another manner that is specified in federal regulations.
(5) Determination ofcreditable coverage.
a. Determination withinreasonable time. If a group health insurer receives creditable coverageinformation under subsection (e) of this section, the group health insurershall, within a reasonable time following receipt of the information, make adetermination regarding the amount of the individual's creditable coverage andthe length of any exclusion that remains. Whether this determination is madewithin a reasonable time depends on the relevant facts and circumstances.Relevant facts and circumstances include whether a plan's application of apreexisting condition exclusion would prevent an individual from having accessto urgent medical care.
b. No time limit onpresenting evidence of creditable coverage. A group health insurer shall notimpose any limit on the amount of time that an individual has to present acertificate or other evidence of creditable coverage.
(d) Exceptions.
(1) Exclusion notapplicable to certain newborns. Subject to subdivision (4) of thissubsection, a group health insurer shall not impose any preexisting conditionexclusion in the case of an individual who, as of the last day of the 30‑dayperiod beginning with the individual's date of birth, is covered undercreditable coverage.
(2) Exclusion notapplicable to certain adopted children. Subject to subdivision (4) of thissubsection, a group health insurer shall not impose any preexisting conditionexclusion in the case of a child who is adopted or placed for adoption beforeattaining 18 years of age and who, as of the last day of the 30‑dayperiod beginning on the date of the adoption or placement for adoption, iscovered under creditable coverage. The previous sentence does not apply tocoverage before the date of the adoption or placement for adoption.
(3) Exclusion notapplicable to pregnancy. A group health insurer shall not impose anypreexisting condition exclusion relating to pregnancy as a preexistingcondition.
(4) Loss if break incoverage. Subdivisions (1) and (2) of this subsection shall no longer applyto an individual after the end of the first 63‑day period during all ofwhich the individual was not covered under any creditable coverage.
(5) Condition firstdiagnosed under previous coverage. A group health insurer shall not imposeany preexisting condition exclusion for a condition for which medical advice,diagnosis, care, or treatment was recommended or received for the first timewhile the covered person held qualifying previous coverage or prior creditablecoverage and the condition was covered under the qualifying previous coverageor prior creditable coverage; provided that the qualifying previous coverage orprior creditable coverage was continuous to a date not more than 63 days beforethe enrollment date for the new coverage.
(e) Certifications andDisclosure of Coverage.
(1) Requirement forcertification of period of creditable coverage.
a. In general. Agroup health insurer shall provide the certification described in sub‑subdivisionb. of this subdivision: (i) at the time an individual ceases to be coveredunder the plan or otherwise becomes covered under a COBRA continuationprovision, (ii) in the case of an individual becoming covered under a COBRAcontinuation provision, at the time the individual ceases to be covered underthe COBRA continuation provision, and (iii) on the request on behalf of anindividual made not later than 24 months after the date of cessation of thecoverage described in clause (i) or (ii) of this sub‑subdivision,whichever is later.
Thecertification under clause (i) of this sub‑subdivision may be provided,to the extent practicable, at a time consistent with notices required under anyapplicable COBRA continuation provision.
b. Certification. Thecertification described in this sub‑subdivision is a writtencertification of: (i) the period of creditable coverage of the individual underthe plan and any coverage under the COBRA continuation provision, and (ii) anywaiting period and affiliation period, if applicable, imposed with respect tothe individual for any coverage under the plan.
(2) Disclosure ofinformation on previous benefits. In the case of an election described in sub‑subdivision(c)(3)b. of this subsection by a group health insurer, if the health insurerenrolls an individual for coverage under the plan and the individual provides acertification of coverage of the individual under subdivision (1) of thissubsection:
a. Upon request of thehealth insurer, the entity that issued the certification provided by theindividual shall promptly disclose to the requesting plan or health insurerinformation on coverage of classes and categories of health benefits availableunder the entity's coverage.
b. The entity maycharge the requesting plan or health insurer for the reasonable cost ofdisclosing the information.
(f) Special EnrollmentPeriods.
(1) Individuals losingother coverage. A group health insurer shall permit an employee who iseligible, but not enrolled, for coverage under the terms of the plan (or adependent of the employee if the dependent is eligible, but not enrolled, forcoverage under the terms) to enroll for coverage under the terms of the plan ifeach of the following conditions is met:
a. The employee ordependent was covered under an ERISA group health plan or had health insurancecoverage at the time coverage was previously offered to the employee ordependent.
b. The employee statedin writing at the time that coverage under the group health plan or healthinsurance coverage was the reason for declining enrollment, but only if thehealth insurer required the statement at the time and provided the employeewith notice of the requirement and the consequences of the requirement at thetime.
c. With respect to theemployee's or dependent's coverage described in sub‑subdivision a. ofthis subsection: (i) the coverage was under a COBRA continuation provision andthe coverage under the provision was exhausted; (ii) the coverage was not underthat provision and either the coverage was terminated because of loss ofeligibility for the coverage, including legal separation, divorce, cessation ofdependent status (such as attaining the maximum age to be eligible as adependent child under the plan), death of an employee, termination ofemployment, reduction in the number of hours of employment, and any loss ofeligibility for coverage after a period that is measured by reference to any ofthe foregoing; (iii) employer contributions toward the coverage wereterminated; (iv) in the case of coverage offered through an arrangement thatdoes not provide benefits to individuals who no longer reside, live, or work ina service area, there has been loss of coverage because an individual no longerresides, lives, or works in the service area (whether or not within the choiceof the individual), and no other benefit package is available to theindividual; (v) an individual incurs a claim that would meet or exceed alifetime limit on all benefits; or (vi) a plan no longer offers any benefits tothe class of similarly situated individuals that includes the individual; or(vii) the health insurer terminated coverage under G.S. 58‑68‑45(c)(2).
d. Under the terms ofthe plan, the employee requests the enrollment not later than 30 days after thedate of the applicable event described in sub‑subdivision c. of thissubdivision.
(2) For dependentbeneficiaries.
a. In general. If:(i) a group health insurance plan makes coverage available with respect to adependent of an individual, (ii) the individual is a participant under the plan(or has met any waiting period applicable to becoming a participant under theplan and is eligible to be enrolled under the plan but for a failure to enrollduring a previous enrollment period), and (iii) a person becomes the dependentof the individual through marriage, birth, or adoption or placement foradoption.
Theplan shall provide for a dependent special enrollment period described in sub‑subdivisionb. of this subdivision during which the person (or, if not otherwise enrolled,the individual) may be enrolled under the plan as a dependent of theindividual, and in the case of the birth or adoption of a child, the spouse ofthe individual may be enrolled as a dependent of the individual if the spouseis otherwise eligible for coverage.
b. Dependent specialenrollment period. A dependent special enrollment period under this sub‑subdivisionshall be a period of not less than 30 days and shall begin on the later of: (i)the date dependent coverage is made available, or (ii) the date of themarriage, birth, or adoption or placement for adoption described in sub‑subdivisiona.(iii) of this subdivision.
c. No waiting period. If an individual seeks to enroll a dependent during the first 30 days of thedependent's special enrollment period, the coverage of the dependent shallbecome effective: (i) in the case of marriage, not later than the first day ofthe first month beginning after the date the completed request for enrollmentis received; (ii) in the case of a dependent's birth, as of the date of thebirth; or (iii) in the case of a dependent's adoption or placement foradoption, the date of the adoption or placement for adoption.
(3) Treatment of specialenrollees.
a. If an individualrequests enrollment while the individual is entitled to special enrollmentunder this subsection, the individual is a special enrollee, even if therequest for enrollment coincides with a late enrollment opportunity under theplan. Therefore, the individual cannot be considered a late enrollee.
b. Special enrolleesshall be offered all of the benefit packages available to similarly situatedindividuals who enroll when first eligible. For this purpose, any difference inbenefits or cost‑sharing requirements for different individualsconstitutes a different benefit package. In addition, a special enrollee cannotbe required to pay more for coverage than a similarly situated individual whoenrolls in the same coverage when first eligible. The length of any preexistingcondition exclusion that may be applied to a special enrollee cannot exceed thelength of any preexisting condition exclusion that is applied to similarlysituated individuals who enroll when first eligible.
(4) Special rules forapplication in case of Medicaid or State Children's Health Insurance Program(Title XXI of the Social Security Act). A group health insurer shall permitan employee who is eligible, but not enrolled, for coverage under the terms ofthe plan (or a dependent of the employee if the dependent is eligible, but notenrolled, for coverage under the terms) to enroll for coverage under the termsof the plan if either of the following conditions is met:
a. Termination ofMedicaid or State Children's Health Insurance Program. The employee ordependent is covered under a Medicaid plan under Title XIX of the SocialSecurity Act or under a State children's health plan under Title XXI of theSocial Security Act and coverage of the employee or dependent under such a planis terminated as a result of the loss of eligibility for such coverage and theemployee requests coverage under the group health insurance coverage not laterthan 60 days after the termination of such coverage.
b. Eligibility foremployment assistance under Medicaid or State Children's Health InsuranceProgram. The employee or dependent becomes eligible for assistance, withrespect to coverage under the group health insurance coverage, under suchMedicaid plan or State child health plan (including any waiver or demonstrationproject conducted under or in relation to such a plan), if the employeerequests coverage under the group health insurance coverage not later than 60days after the date the employee or dependent is determined to be eligible forsuch assistance.
(g) Use of AffiliationPeriod by HMO as Alternative to Preexisting Condition Exclusion.
(1) In general. Ahealth maintenance organization that does not impose any preexisting conditionexclusion allowed under subsection (a) of this section with respect to anyparticular coverage option may impose an affiliation period for the coverageoption, but only if:
a. The period isapplied uniformly without regard to any health status‑related factors.
b. The period does notexceed two months (or three months in the case of a late enrollee).
(2) Affiliation period.
a. Defined. For thepurposes of this Subpart, "affiliation period" means a period that,under the terms of the health insurance coverage offered by the healthmaintenance organization, must expire before the health insurance coveragebecomes effective. The health maintenance organization is not required toprovide health care services or benefits during the period and no premium shallbe charged to the participant or beneficiary for any coverage during theperiod.
b. Beginning. Theperiod shall begin on the enrollment date.
c. Runs concurrentlywith waiting periods. An affiliation period under a plan shall runconcurrently with any waiting period under the plan.
(3) Alternative methods. A health maintenance organization described in subdivision (1) of thissubsection may use alternative methods, as approved by the Commissioner, fromthose described in that subdivision, to address adverse selection.
(h) General Notice ofPreexisting Condition Exclusion. A group health insurer offering group healthinsurance coverage subject to a preexisting condition exclusion shall provide awritten general notice of preexisting condition exclusion to participants underthe plan; and shall not impose a preexisting condition exclusion with respectto a participant or a dependent of the participant until the notice isprovided.
A group health insurer shallprovide the general notice of preexisting condition exclusion as part of anywritten application materials distributed by the insurer for enrollment. If theinsurer does not distribute these materials, the notice shall be provided bythe earliest date following a request for enrollment that the insurer, actingin a reasonable and prompt fashion, can provide the notice.
The general notice ofpreexisting condition exclusion shall notify participants of the following:
(1) The existence andterms of any preexisting condition exclusion under the plan. This descriptionincludes the length of the plan's look‑back period, which shall notexceed six months under subdivision (a)(1) of this section; the maximumpreexisting condition exclusion period under the plan, which shall not exceed12 months (18 months for late enrollees) under subdivision (a)(2) of thissection; and how the plan will reduce the maximum preexisting conditionexclusion period by creditable coverage, as described in subsection (c) of thissection.
(2) A description of therights of individuals to demonstrate creditable coverage, and any applicablewaiting periods, through a certificate of creditable coverage, as required bysubsection (e) of this section, or through other means as described in federalregulations. This shall include a description of the right of the individual torequest a certificate from a prior insurer, if necessary, and a statement thatthe current insurer will assist in obtaining a certificate from any prior planor insurer, if necessary.
(3) A person to contact,including an address or telephone number for obtaining additional informationor assistance about the preexisting condition exclusion.
Nothing in this subsectionaffects a group health insurer's responsibility under this section to fullydisclose in the master group policy, the certificate or evidence of coverage,and the member handbook the plan's preexisting condition limitation, the rulesrelating to creditable coverage, including how an individual may provide proofof creditable coverage, and the methods of counting and crediting coverage.
(i) Individual Noticeof Period of Preexisting Condition Exclusion. After an individual haspresented evidence of creditable coverage and the group health insurer has madea determination of creditable coverage under subdivision (c)(5) of thissection, the group health insurer shall provide the individual a written noticeof the length of preexisting condition exclusion that remains after offsettingfor prior creditable coverage. In the notice, the insurer is not required toidentify any medical conditions specific to the individual that could besubject to the exclusion. A group health insurer is not required to providethis notice if the plan does not impose any preexisting condition exclusion onthe individual or if the plan's preexisting condition exclusion is completelyoffset by the individual's prior creditable coverage.
The individual notice must beprovided by the earliest date following a determination that the group healthinsurer, acting in a reasonable and prompt fashion, can provide the notice.
A group health insurer shalldisclose:
(1) Its determination ofany preexisting condition exclusion period that applies to the individual,including the last day on which the preexisting condition exclusion applies.
(2) The basis for thatdetermination, including the source and substance of any information on whichthe plan or insurer relied.
(3) An explanation ofthe individual's right to submit additional evidence of creditable coverage.
(4) A description of anyapplicable appeal procedures established by the group health insurer.
(j) DeterminationModification. Nothing in this section prevents a plan or insurer frommodifying an initial determination of creditable coverage if it determines thatthe individual did not have the claimed creditable coverage, provided that:
(1) A notice of the newdetermination, consistent with the requirements of subsection (i) of thissection, is provided to the individual; and
(2) Until the notice ofthe new determination is provided, the group health insurer, for purposes ofapproving access to medical services (such as a presurgery authorization), actsin a manner consistent with the initial determination.
(k) Notice Form andContent. Any notices required under this section shall be in the form andcontent and be delivered as prescribed by, in accordance with, or as specifiedin federal regulations, unless otherwise provided in this Chapter. (1997‑259, s. 1(c);1998‑211, s. 7; 2001‑334, s. 9; 2005‑224, ss. 1, 4, 2.1, 2.2;2007‑298, ss. 2.3‑2.5; 2009‑382, ss. 4, 23.)
§ 58‑68‑30. Increased portability through limitation on preexisting condition exclusions.
(a) Limitation onPreexisting Condition Exclusion Period; Crediting for Periods of PreviousCoverage. Subject to subsection (d) of this section, a group health insurermay, with respect to a participant or beneficiary, impose a preexistingcondition exclusion only if:
(1) The exclusionrelates to a condition, whether physical or mental, regardless of the cause ofthe condition, for which medical advice, diagnosis, care, or treatment wasrecommended or received within the six‑month period ending on theenrollment date.
(2) The exclusionextends for a period of not more than 12 months, or 18 months in the case of alate enrollee, after the enrollment date.
(3) The period of anypreexisting condition exclusion is reduced by the aggregate of the periods ofcreditable coverage, if any, applicable to the participant or beneficiary as ofthe enrollment date.
(b) Definitions. Forthe purposes of this Part:
(1) Enrollment date. Withrespect to an individual covered under a group health insurance plan, the dateof enrollment of the individual in the coverage or, if earlier, the first dayof the waiting period for the enrollment. An individual's enrollment date doesnot change if the individual receiving benefits under a group health insuranceplan changes benefit packages or if the plan changes health insurers.
(2) Late enrollee. Withrespect to coverage under a group health insurance plan, a participant orbeneficiary who enrolls under the plan other than during:
a. The first period inwhich the individual is eligible to enroll under the plan, or
b. A special enrollmentperiod under subsection (f) of this section.
(3) Preexistingcondition exclusion.
a. In general. "Preexistingcondition exclusion" means, with respect to coverage, a limitation orexclusion of benefits relating to a condition based on the fact that thecondition was present before the effective date of coverage under a grouphealth plan or group health insurance coverage, whether or not any medicaladvice, diagnosis, care, or treatment was recommended or received before thatday. A preexisting condition exclusion includes any exclusion applicable to anindividual as a result of information relating to an individual's health statusbefore the individual's effective date of coverage under a group health plan orgroup health insurance coverage, such as a condition identified as a result ofa preenrollment questionnaire or physical examination given to the individual,or review of medical records relating to the preenrollment period.
b. Treatment of geneticinformation. Genetic information shall not be treated as a conditiondescribed in subdivision (a)(1) of this subsection in the absence of adiagnosis of the condition related to the information.
(4) Waiting period.
a. With respect to agroup health insurance plan and an individual who is a potential participant orbeneficiary in the plan, the period that must pass with respect to theindividual before the individual is eligible to be covered for benefits underthe terms of the plan.
b. If an employee ordependent enrolls as a late enrollee or special enrollee, any period before thelate or special enrollment is not a waiting period.
c. If an individualseeks individual health insurance coverage, a waiting period begins on the datethe individual submits a substantially complete application and ends on: (i)the date coverage begins if the application results in coverage; or (ii) thedate on which the application is denied by the health insurer or the date onwhich the offer for coverage lapses if the application does not result incoverage.
(1) Creditable coveragedefined. For the purposes of this Article, "creditable coverage"means, with respect to an individual, coverage of the individual under any ofthe following:
a. A group health plan.
b. Health insurancecoverage without regard to whether the coverage is offered in the group market,the individual market, or otherwise.
c. Part A or part B oftitle XVIII of the Social Security Act.
d. Title XIX of theSocial Security Act, other than coverage consisting solely of benefits undersection 1928.
e. Chapter 55 of title10, United States Code.
f. A medical careprogram of the Indian Health Service or of a tribal organization.
g. A State healthbenefits risk pool.
h. A health planoffered under chapter 89 of title 5, United States Code.
i. A public healthplan (as defined in federal regulations).
j. A health benefitplan under section 5(e) of the Peace Corps Act (22 U.S.C. § 2504(e)).
k. Title XXI of theSocial Security Act (State Children's Health Insurance Program).
"Creditablecoverage" does not include coverage consisting solely of coverage ofexcepted benefits. However, short‑term limited‑duration healthinsurance coverage shall be considered creditable coverage for purposes of thissection.
(2) Not counting periodsbefore significant breaks in coverage.
a. In general. Aperiod of creditable coverage shall not be counted, with respect to enrollmentof an individual under a group health insurance plan, if, after the period andbefore the enrollment date, there was a 63‑day period during all of whichthe individual was not covered under any creditable coverage.
b. Waiting period nottreated as a break in coverage. For the purposes of sub‑subdivision a.of this subdivision and subdivision (d)(4) of this subsection, any period thatan individual is in a waiting period for any coverage under a group health insuranceplan or is in an affiliation period shall not be taken into account indetermining the continuous period under sub‑subdivision a. of thissubdivision.
c. Time spent on shortterm limited duration health insurance not treated as a break in coverage. Forthe purposes of sub‑subdivision a. of this subdivision, any period thatan individual is enrolled on a short term limited duration health insurancepolicy shall not be taken into account in determining the continuous periodunder sub‑subdivision a. of this subdivision so long as the period oftime spent on the short term limited duration health insurance policy orpolicies does not exceed 12 months.
d. For an individualwho elects COBRA continuation coverage during the second election periodprovided under the Trade Act of 2002, the days between the date the individuallost group health plan coverage and the first day of the second COBRA electionperiod shall not be considered when determining whether a significant break incoverage has occurred.
(3) Method of creditingcoverage.
a. Standard method. Exceptas otherwise provided under sub‑subdivision b. of this subdivision forthe purposes of applying subdivision (a)(3) of this subsection, a group healthinsurer shall count a period of creditable coverage without regard to thespecific benefits covered during the period.
b. Election ofalternative method. A group health insurer may elect to apply subdivision(a)(3) of this subsection based on coverage of benefits within each of severalclasses or categories of benefits specified in federal regulations rather thanas provided under sub‑subdivision a. of this subdivision. This electionshall be made on a uniform basis for all participants and beneficiaries. Underthis election a group health insurer shall count a period of creditablecoverage with respect to any class or category of benefits if any level ofbenefits is covered within the class or category.
c. Health insurernotice. In the case of an election under sub‑subdivision b. of thissubdivision with respect to health insurance coverage in the small or largegroup market, the health insurer: (i) shall prominently state in any disclosurestatements concerning the coverage, and to each employer at the time of theoffer or sale of the coverage, that the health insurer has made the election,and (ii) shall include in the statements a description of the effect of theelection.
(4) Establishment ofperiod. Periods of creditable coverage for an individual shall be establishedthrough presentation of certifications described in subsection (e) of thissection or in another manner that is specified in federal regulations.
(5) Determination ofcreditable coverage.
a. Determination withinreasonable time. If a group health insurer receives creditable coverageinformation under subsection (e) of this section, the group health insurershall, within a reasonable time following receipt of the information, make adetermination regarding the amount of the individual's creditable coverage andthe length of any exclusion that remains. Whether this determination is madewithin a reasonable time depends on the relevant facts and circumstances.Relevant facts and circumstances include whether a plan's application of apreexisting condition exclusion would prevent an individual from having accessto urgent medical care.
b. No time limit onpresenting evidence of creditable coverage. A group health insurer shall notimpose any limit on the amount of time that an individual has to present acertificate or other evidence of creditable coverage.
(d) Exceptions.
(1) Exclusion notapplicable to certain newborns. Subject to subdivision (4) of thissubsection, a group health insurer shall not impose any preexisting conditionexclusion in the case of an individual who, as of the last day of the 30‑dayperiod beginning with the individual's date of birth, is covered undercreditable coverage.
(2) Exclusion notapplicable to certain adopted children. Subject to subdivision (4) of thissubsection, a group health insurer shall not impose any preexisting conditionexclusion in the case of a child who is adopted or placed for adoption beforeattaining 18 years of age and who, as of the last day of the 30‑dayperiod beginning on the date of the adoption or placement for adoption, iscovered under creditable coverage. The previous sentence does not apply tocoverage before the date of the adoption or placement for adoption.
(3) Exclusion notapplicable to pregnancy. A group health insurer shall not impose anypreexisting condition exclusion relating to pregnancy as a preexistingcondition.
(4) Loss if break incoverage. Subdivisions (1) and (2) of this subsection shall no longer applyto an individual after the end of the first 63‑day period during all ofwhich the individual was not covered under any creditable coverage.
(5) Condition firstdiagnosed under previous coverage. A group health insurer shall not imposeany preexisting condition exclusion for a condition for which medical advice,diagnosis, care, or treatment was recommended or received for the first timewhile the covered person held qualifying previous coverage or prior creditablecoverage and the condition was covered under the qualifying previous coverageor prior creditable coverage; provided that the qualifying previous coverage orprior creditable coverage was continuous to a date not more than 63 days beforethe enrollment date for the new coverage.
(e) Certifications andDisclosure of Coverage.
(1) Requirement forcertification of period of creditable coverage.
a. In general. Agroup health insurer shall provide the certification described in sub‑subdivisionb. of this subdivision: (i) at the time an individual ceases to be coveredunder the plan or otherwise becomes covered under a COBRA continuationprovision, (ii) in the case of an individual becoming covered under a COBRAcontinuation provision, at the time the individual ceases to be covered underthe COBRA continuation provision, and (iii) on the request on behalf of anindividual made not later than 24 months after the date of cessation of thecoverage described in clause (i) or (ii) of this sub‑subdivision,whichever is later.
Thecertification under clause (i) of this sub‑subdivision may be provided,to the extent practicable, at a time consistent with notices required under anyapplicable COBRA continuation provision.
b. Certification. Thecertification described in this sub‑subdivision is a writtencertification of: (i) the period of creditable coverage of the individual underthe plan and any coverage under the COBRA continuation provision, and (ii) anywaiting period and affiliation period, if applicable, imposed with respect tothe individual for any coverage under the plan.
(2) Disclosure ofinformation on previous benefits. In the case of an election described in sub‑subdivision(c)(3)b. of this subsection by a group health insurer, if the health insurerenrolls an individual for coverage under the plan and the individual provides acertification of coverage of the individual under subdivision (1) of thissubsection:
a. Upon request of thehealth insurer, the entity that issued the certification provided by theindividual shall promptly disclose to the requesting plan or health insurerinformation on coverage of classes and categories of health benefits availableunder the entity's coverage.
b. The entity maycharge the requesting plan or health insurer for the reasonable cost ofdisclosing the information.
(f) Special EnrollmentPeriods.
(1) Individuals losingother coverage. A group health insurer shall permit an employee who iseligible, but not enrolled, for coverage under the terms of the plan (or adependent of the employee if the dependent is eligible, but not enrolled, forcoverage under the terms) to enroll for coverage under the terms of the plan ifeach of the following conditions is met:
a. The employee ordependent was covered under an ERISA group health plan or had health insurancecoverage at the time coverage was previously offered to the employee ordependent.
b. The employee statedin writing at the time that coverage under the group health plan or healthinsurance coverage was the reason for declining enrollment, but only if thehealth insurer required the statement at the time and provided the employeewith notice of the requirement and the consequences of the requirement at thetime.
c. With respect to theemployee's or dependent's coverage described in sub‑subdivision a. ofthis subsection: (i) the coverage was under a COBRA continuation provision andthe coverage under the provision was exhausted; (ii) the coverage was not underthat provision and either the coverage was terminated because of loss ofeligibility for the coverage, including legal separation, divorce, cessation ofdependent status (such as attaining the maximum age to be eligible as adependent child under the plan), death of an employee, termination ofemployment, reduction in the number of hours of employment, and any loss ofeligibility for coverage after a period that is measured by reference to any ofthe foregoing; (iii) employer contributions toward the coverage wereterminated; (iv) in the case of coverage offered through an arrangement thatdoes not provide benefits to individuals who no longer reside, live, or work ina service area, there has been loss of coverage because an individual no longerresides, lives, or works in the service area (whether or not within the choiceof the individual), and no other benefit package is available to theindividual; (v) an individual incurs a claim that would meet or exceed alifetime limit on all benefits; or (vi) a plan no longer offers any benefits tothe class of similarly situated individuals that includes the individual; or(vii) the health insurer terminated coverage under G.S. 58‑68‑45(c)(2).
d. Under the terms ofthe plan, the employee requests the enrollment not later than 30 days after thedate of the applicable event described in sub‑subdivision c. of thissubdivision.
(2) For dependentbeneficiaries.
a. In general. If:(i) a group health insurance plan makes coverage available with respect to adependent of an individual, (ii) the individual is a participant under the plan(or has met any waiting period applicable to becoming a participant under theplan and is eligible to be enrolled under the plan but for a failure to enrollduring a previous enrollment period), and (iii) a person becomes the dependentof the individual through marriage, birth, or adoption or placement foradoption.
Theplan shall provide for a dependent special enrollment period described in sub‑subdivisionb. of this subdivision during which the person (or, if not otherwise enrolled,the individual) may be enrolled under the plan as a dependent of theindividual, and in the case of the birth or adoption of a child, the spouse ofthe individual may be enrolled as a dependent of the individual if the spouseis otherwise eligible for coverage.
b. Dependent specialenrollment period. A dependent special enrollment period under this sub‑subdivisionshall be a period of not less than 30 days and shall begin on the later of: (i)the date dependent coverage is made available, or (ii) the date of themarriage, birth, or adoption or placement for adoption described in sub‑subdivisiona.(iii) of this subdivision.
c. No waiting period. If an individual seeks to enroll a dependent during the first 30 days of thedependent's special enrollment period, the coverage of the dependent shallbecome effective: (i) in the case of marriage, not later than the first day ofthe first month beginning after the date the completed request for enrollmentis received; (ii) in the case of a dependent's birth, as of the date of thebirth; or (iii) in the case of a dependent's adoption or placement foradoption, the date of the adoption or placement for adoption.
(3) Treatment of specialenrollees.
a. If an individualrequests enrollment while the individual is entitled to special enrollmentunder this subsection, the individual is a special enrollee, even if therequest for enrollment coincides with a late enrollment opportunity under theplan. Therefore, the individual cannot be considered a late enrollee.
b. Special enrolleesshall be offered all of the benefit packages available to similarly situatedindividuals who enroll when first eligible. For this purpose, any difference inbenefits or cost‑sharing requirements for different individualsconstitutes a different benefit package. In addition, a special enrollee cannotbe required to pay more for coverage than a similarly situated individual whoenrolls in the same coverage when first eligible. The length of any preexistingcondition exclusion that may be applied to a special enrollee cannot exceed thelength of any preexisting condition exclusion that is applied to similarlysituated individuals who enroll when first eligible.
(4) Special rules forapplication in case of Medicaid or State Children's Health Insurance Program(Title XXI of the Social Security Act). A group health insurer shall permitan employee who is eligible, but not enrolled, for coverage under the terms ofthe plan (or a dependent of the employee if the dependent is eligible, but notenrolled, for coverage under the terms) to enroll for coverage under the termsof the plan if either of the following conditions is met:
a. Termination ofMedicaid or State Children's Health Insurance Program. The employee ordependent is covered under a Medicaid plan under Title XIX of the SocialSecurity Act or under a State children's health plan under Title XXI of theSocial Security Act and coverage of the employee or dependent under such a planis terminated as a result of the loss of eligibility for such coverage and theemployee requests coverage under the group health insurance coverage not laterthan 60 days after the termination of such coverage.
b. Eligibility foremployment assistance under Medicaid or State Children's Health InsuranceProgram. The employee or dependent becomes eligible for assistance, withrespect to coverage under the group health insurance coverage, under suchMedicaid plan or State child health plan (including any waiver or demonstrationproject conducted under or in relation to such a plan), if the employeerequests coverage under the group health insurance coverage not later than 60days after the date the employee or dependent is determined to be eligible forsuch assistance.
(g) Use of AffiliationPeriod by HMO as Alternative to Preexisting Condition Exclusion.
(1) In general. Ahealth maintenance organization that does not impose any preexisting conditionexclusion allowed under subsection (a) of this section with respect to anyparticular coverage option may impose an affiliation period for the coverageoption, but only if:
a. The period isapplied uniformly without regard to any health status‑related factors.
b. The period does notexceed two months (or three months in the case of a late enrollee).
(2) Affiliation period.
a. Defined. For thepurposes of this Subpart, "affiliation period" means a period that,under the terms of the health insurance coverage offered by the healthmaintenance organization, must expire before the health insurance coveragebecomes effective. The health maintenance organization is not required toprovide health care services or benefits during the period and no premium shallbe charged to the participant or beneficiary for any coverage during theperiod.
b. Beginning. Theperiod shall begin on the enrollment date.
c. Runs concurrentlywith waiting periods. An affiliation period under a plan shall runconcurrently with any waiting period under the plan.
(3) Alternative methods. A health maintenance organization described in subdivision (1) of thissubsection may use alternative methods, as approved by the Commissioner, fromthose described in that subdivision, to address adverse selection.
(h) General Notice ofPreexisting Condition Exclusion. A group health insurer offering group healthinsurance coverage subject to a preexisting condition exclusion shall provide awritten general notice of preexisting condition exclusion to participants underthe plan; and shall not impose a preexisting condition exclusion with respectto a participant or a dependent of the participant until the notice isprovided.
A group health insurer shallprovide the general notice of preexisting condition exclusion as part of anywritten application materials distributed by the insurer for enrollment. If theinsurer does not distribute these materials, the notice shall be provided bythe earliest date following a request for enrollment that the insurer, actingin a reasonable and prompt fashion, can provide the notice.
The general notice ofpreexisting condition exclusion shall notify participants of the following:
(1) The existence andterms of any preexisting condition exclusion under the plan. This descriptionincludes the length of the plan's look‑back period, which shall notexceed six months under subdivision (a)(1) of this section; the maximumpreexisting condition exclusion period under the plan, which shall not exceed12 months (18 months for late enrollees) under subdivision (a)(2) of thissection; and how the plan will reduce the maximum preexisting conditionexclusion period by creditable coverage, as described in subsection (c) of thissection.
(2) A description of therights of individuals to demonstrate creditable coverage, and any applicablewaiting periods, through a certificate of creditable coverage, as required bysubsection (e) of this section, or through other means as described in federalregulations. This shall include a description of the right of the individual torequest a certificate from a prior insurer, if necessary, and a statement thatthe current insurer will assist in obtaining a certificate from any prior planor insurer, if necessary.
(3) A person to contact,including an address or telephone number for obtaining additional informationor assistance about the preexisting condition exclusion.
Nothing in this subsectionaffects a group health insurer's responsibility under this section to fullydisclose in the master group policy, the certificate or evidence of coverage,and the member handbook the plan's preexisting condition limitation, the rulesrelating to creditable coverage, including how an individual may provide proofof creditable coverage, and the methods of counting and crediting coverage.
(i) Individual Noticeof Period of Preexisting Condition Exclusion. After an individual haspresented evidence of creditable coverage and the group health insurer has madea determination of creditable coverage under subdivision (c)(5) of thissection, the group health insurer shall provide the individual a written noticeof the length of preexisting condition exclusion that remains after offsettingfor prior creditable coverage. In the notice, the insurer is not required toidentify any medical conditions specific to the individual that could besubject to the exclusion. A group health insurer is not required to providethis notice if the plan does not impose any preexisting condition exclusion onthe individual or if the plan's preexisting condition exclusion is completelyoffset by the individual's prior creditable coverage.
The individual notice must beprovided by the earliest date following a determination that the group healthinsurer, acting in a reasonable and prompt fashion, can provide the notice.
A group health insurer shalldisclose:
(1) Its determination ofany preexisting condition exclusion period that applies to the individual,including the last day on which the preexisting condition exclusion applies.
(2) The basis for thatdetermination, including the source and substance of any information on whichthe plan or insurer relied.
(3) An explanation ofthe individual's right to submit additional evidence of creditable coverage.
(4) A description of anyapplicable appeal procedures established by the group health insurer.
(j) DeterminationModification. Nothing in this section prevents a plan or insurer frommodifying an initial determination of creditable coverage if it determines thatthe individual did not have the claimed creditable coverage, provided that:
(1) A notice of the newdetermination, consistent with the requirements of subsection (i) of thissection, is provided to the individual; and
(2) Until the notice ofthe new determination is provided, the group health insurer, for purposes ofapproving access to medical services (such as a presurgery authorization), actsin a manner consistent with the initial determination.
(k) Notice Form andContent. Any notices required under this section shall be in the form andcontent and be delivered as prescribed by, in accordance with, or as specifiedin federal regulations, unless otherwise provided in this Chapter. (1997‑259, s. 1(c);1998‑211, s. 7; 2001‑334, s. 9; 2005‑224, ss. 1, 4, 2.1, 2.2;2007‑298, ss. 2.3‑2.5; 2009‑382, ss. 4, 23.)
§ 58‑68‑30. Increased portability through limitation on preexisting condition exclusions.
(a) Limitation onPreexisting Condition Exclusion Period; Crediting for Periods of PreviousCoverage. Subject to subsection (d) of this section, a group health insurermay, with respect to a participant or beneficiary, impose a preexistingcondition exclusion only if:
(1) The exclusionrelates to a condition, whether physical or mental, regardless of the cause ofthe condition, for which medical advice, diagnosis, care, or treatment wasrecommended or received within the six‑month period ending on theenrollment date.
(2) The exclusionextends for a period of not more than 12 months, or 18 months in the case of alate enrollee, after the enrollment date.
(3) The period of anypreexisting condition exclusion is reduced by the aggregate of the periods ofcreditable coverage, if any, applicable to the participant or beneficiary as ofthe enrollment date.
(b) Definitions. Forthe purposes of this Part:
(1) Enrollment date. Withrespect to an individual covered under a group health insurance plan, the dateof enrollment of the individual in the coverage or, if earlier, the first dayof the waiting period for the enrollment. An individual's enrollment date doesnot change if the individual receiving benefits under a group health insuranceplan changes benefit packages or if the plan changes health insurers.
(2) Late enrollee. Withrespect to coverage under a group health insurance plan, a participant orbeneficiary who enrolls under the plan other than during:
a. The first period inwhich the individual is eligible to enroll under the plan, or
b. A special enrollmentperiod under subsection (f) of this section.
(3) Preexistingcondition exclusion.
a. In general. "Preexistingcondition exclusion" means, with respect to coverage, a limitation orexclusion of benefits relating to a condition based on the fact that thecondition was present before the effective date of coverage under a grouphealth plan or group health insurance coverage, whether or not any medicaladvice, diagnosis, care, or treatment was recommended or received before thatday. A preexisting condition exclusion includes any exclusion applicable to anindividual as a result of information relating to an individual's health statusbefore the individual's effective date of coverage under a group health plan orgroup health insurance coverage, such as a condition identified as a result ofa preenrollment questionnaire or physical examination given to the individual,or review of medical records relating to the preenrollment period.
b. Treatment of geneticinformation. Genetic information shall not be treated as a conditiondescribed in subdivision (a)(1) of this subsection in the absence of adiagnosis of the condition related to the information.
(4) Waiting period.
a. With respect to agroup health insurance plan and an individual who is a potential participant orbeneficiary in the plan, the period that must pass with respect to theindividual before the individual is eligible to be covered for benefits underthe terms of the plan.
b. If an employee ordependent enrolls as a late enrollee or special enrollee, any period before thelate or special enrollment is not a waiting period.
c. If an individualseeks individual health insurance coverage, a waiting period begins on the datethe individual submits a substantially complete application and ends on: (i)the date coverage begins if the application results in coverage; or (ii) thedate on which the application is denied by the health insurer or the date onwhich the offer for coverage lapses if the application does not result incoverage.
(1) Creditable coveragedefined. For the purposes of this Article, "creditable coverage"means, with respect to an individual, coverage of the individual under any ofthe following:
a. A group health plan.
b. Health insurancecoverage without regard to whether the coverage is offered in the group market,the individual market, or otherwise.
c. Part A or part B oftitle XVIII of the Social Security Act.
d. Title XIX of theSocial Security Act, other than coverage consisting solely of benefits undersection 1928.
e. Chapter 55 of title10, United States Code.
f. A medical careprogram of the Indian Health Service or of a tribal organization.
g. A State healthbenefits risk pool.
h. A health planoffered under chapter 89 of title 5, United States Code.
i. A public healthplan (as defined in federal regulations).
j. A health benefitplan under section 5(e) of the Peace Corps Act (22 U.S.C. § 2504(e)).
k. Title XXI of theSocial Security Act (State Children's Health Insurance Program).
"Creditablecoverage" does not include coverage consisting solely of coverage ofexcepted benefits. However, short‑term limited‑duration healthinsurance coverage shall be considered creditable coverage for purposes of thissection.
(2) Not counting periodsbefore significant breaks in coverage.
a. In general. Aperiod of creditable coverage shall not be counted, with respect to enrollmentof an individual under a group health insurance plan, if, after the period andbefore the enrollment date, there was a 63‑day period during all of whichthe individual was not covered under any creditable coverage.
b. Waiting period nottreated as a break in coverage. For the purposes of sub‑subdivision a.of this subdivision and subdivision (d)(4) of this subsection, any period thatan individual is in a waiting period for any coverage under a group health insuranceplan or is in an affiliation period shall not be taken into account indetermining the continuous period under sub‑subdivision a. of thissubdivision.
c. Time spent on shortterm limited duration health insurance not treated as a break in coverage. Forthe purposes of sub‑subdivision a. of this subdivision, any period thatan individual is enrolled on a short term limited duration health insurancepolicy shall not be taken into account in determining the continuous periodunder sub‑subdivision a. of this subdivision so long as the period oftime spent on the short term limited duration health insurance policy orpolicies does not exceed 12 months.
d. For an individualwho elects COBRA continuation coverage during the second election periodprovided under the Trade Act of 2002, the days between the date the individuallost group health plan coverage and the first day of the second COBRA electionperiod shall not be considered when determining whether a significant break incoverage has occurred.
(3) Method of creditingcoverage.
a. Standard method. Exceptas otherwise provided under sub‑subdivision b. of this subdivision forthe purposes of applying subdivision (a)(3) of this subsection, a group healthinsurer shall count a period of creditable coverage without regard to thespecific benefits covered during the period.
b. Election ofalternative method. A group health insurer may elect to apply subdivision(a)(3) of this subsection based on coverage of benefits within each of severalclasses or categories of benefits specified in federal regulations rather thanas provided under sub‑subdivision a. of this subdivision. This electionshall be made on a uniform basis for all participants and beneficiaries. Underthis election a group health insurer shall count a period of creditablecoverage with respect to any class or category of benefits if any level ofbenefits is covered within the class or category.
c. Health insurernotice. In the case of an election under sub‑subdivision b. of thissubdivision with respect to health insurance coverage in the small or largegroup market, the health insurer: (i) shall prominently state in any disclosurestatements concerning the coverage, and to each employer at the time of theoffer or sale of the coverage, that the health insurer has made the election,and (ii) shall include in the statements a description of the effect of theelection.
(4) Establishment ofperiod. Periods of creditable coverage for an individual shall be establishedthrough presentation of certifications described in subsection (e) of thissection or in another manner that is specified in federal regulations.
(5) Determination ofcreditable coverage.
a. Determination withinreasonable time. If a group health insurer receives creditable coverageinformation under subsection (e) of this section, the group health insurershall, within a reasonable time following receipt of the information, make adetermination regarding the amount of the individual's creditable coverage andthe length of any exclusion that remains. Whether this determination is madewithin a reasonable time depends on the relevant facts and circumstances.Relevant facts and circumstances include whether a plan's application of apreexisting condition exclusion would prevent an individual from having accessto urgent medical care.
b. No time limit onpresenting evidence of creditable coverage. A group health insurer shall notimpose any limit on the amount of time that an individual has to present acertificate or other evidence of creditable coverage.
(d) Exceptions.
(1) Exclusion notapplicable to certain newborns. Subject to subdivision (4) of thissubsection, a group health insurer shall not impose any preexisting conditionexclusion in the case of an individual who, as of the last day of the 30‑dayperiod beginning with the individual's date of birth, is covered undercreditable coverage.
(2) Exclusion notapplicable to certain adopted children. Subject to subdivision (4) of thissubsection, a group health insurer shall not impose any preexisting conditionexclusion in the case of a child who is adopted or placed for adoption beforeattaining 18 years of age and who, as of the last day of the 30‑dayperiod beginning on the date of the adoption or placement for adoption, iscovered under creditable coverage. The previous sentence does not apply tocoverage before the date of the adoption or placement for adoption.
(3) Exclusion notapplicable to pregnancy. A group health insurer shall not impose anypreexisting condition exclusion relating to pregnancy as a preexistingcondition.
(4) Loss if break incoverage. Subdivisions (1) and (2) of this subsection shall no longer applyto an individual after the end of the first 63‑day period during all ofwhich the individual was not covered under any creditable coverage.
(5) Condition firstdiagnosed under previous coverage. A group health insurer shall not imposeany preexisting condition exclusion for a condition for which medical advice,diagnosis, care, or treatment was recommended or received for the first timewhile the covered person held qualifying previous coverage or prior creditablecoverage and the condition was covered under the qualifying previous coverageor prior creditable coverage; provided that the qualifying previous coverage orprior creditable coverage was continuous to a date not more than 63 days beforethe enrollment date for the new coverage.
(e) Certifications andDisclosure of Coverage.
(1) Requirement forcertification of period of creditable coverage.
a. In general. Agroup health insurer shall provide the certification described in sub‑subdivisionb. of this subdivision: (i) at the time an individual ceases to be coveredunder the plan or otherwise becomes covered under a COBRA continuationprovision, (ii) in the case of an individual becoming covered under a COBRAcontinuation provision, at the time the individual ceases to be covered underthe COBRA continuation provision, and (iii) on the request on behalf of anindividual made not later than 24 months after the date of cessation of thecoverage described in clause (i) or (ii) of this sub‑subdivision,whichever is later.
Thecertification under clause (i) of this sub‑subdivision may be provided,to the extent practicable, at a time consistent with notices required under anyapplicable COBRA continuation provision.
b. Certification. Thecertification described in this sub‑subdivision is a writtencertification of: (i) the period of creditable coverage of the individual underthe plan and any coverage under the COBRA continuation provision, and (ii) anywaiting period and affiliation period, if applicable, imposed with respect tothe individual for any coverage under the plan.
(2) Disclosure ofinformation on previous benefits. In the case of an election described in sub‑subdivision(c)(3)b. of this subsection by a group health insurer, if the health insurerenrolls an individual for coverage under the plan and the individual provides acertification of coverage of the individual under subdivision (1) of thissubsection:
a. Upon request of thehealth insurer, the entity that issued the certification provided by theindividual shall promptly disclose to the requesting plan or health insurerinformation on coverage of classes and categories of health benefits availableunder the entity's coverage.
b. The entity maycharge the requesting plan or health insurer for the reasonable cost ofdisclosing the information.
(f) Special EnrollmentPeriods.
(1) Individuals losingother coverage. A group health insurer shall permit an employee who iseligible, but not enrolled, for coverage under the terms of the plan (or adependent of the employee if the dependent is eligible, but not enrolled, forcoverage under the terms) to enroll for coverage under the terms of the plan ifeach of the following conditions is met:
a. The employee ordependent was covered under an ERISA group health plan or had health insurancecoverage at the time coverage was previously offered to the employee ordependent.
b. The employee statedin writing at the time that coverage under the group health plan or healthinsurance coverage was the reason for declining enrollment, but only if thehealth insurer required the statement at the time and provided the employeewith notice of the requirement and the consequences of the requirement at thetime.
c. With respect to theemployee's or dependent's coverage described in sub‑subdivision a. ofthis subsection: (i) the coverage was under a COBRA continuation provision andthe coverage under the provision was exhausted; (ii) the coverage was not underthat provision and either the coverage was terminated because of loss ofeligibility for the coverage, including legal separation, divorce, cessation ofdependent status (such as attaining the maximum age to be eligible as adependent child under the plan), death of an employee, termination ofemployment, reduction in the number of hours of employment, and any loss ofeligibility for coverage after a period that is measured by reference to any ofthe foregoing; (iii) employer contributions toward the coverage wereterminated; (iv) in the case of coverage offered through an arrangement thatdoes not provide benefits to individuals who no longer reside, live, or work ina service area, there has been loss of coverage because an individual no longerresides, lives, or works in the service area (whether or not within the choiceof the individual), and no other benefit package is available to theindividual; (v) an individual incurs a claim that would meet or exceed alifetime limit on all benefits; or (vi) a plan no longer offers any benefits tothe class of similarly situated individuals that includes the individual; or(vii) the health insurer terminated coverage under G.S. 58‑68‑45(c)(2).
d. Under the terms ofthe plan, the employee requests the enrollment not later than 30 days after thedate of the applicable event described in sub‑subdivision c. of thissubdivision.
(2) For dependentbeneficiaries.
a. In general. If:(i) a group health insurance plan makes coverage available with respect to adependent of an individual, (ii) the individual is a participant under the plan(or has met any waiting period applicable to becoming a participant under theplan and is eligible to be enrolled under the plan but for a failure to enrollduring a previous enrollment period), and (iii) a person becomes the dependentof the individual through marriage, birth, or adoption or placement foradoption.
Theplan shall provide for a dependent special enrollment period described in sub‑subdivisionb. of this subdivision during which the person (or, if not otherwise enrolled,the individual) may be enrolled under the plan as a dependent of theindividual, and in the case of the birth or adoption of a child, the spouse ofthe individual may be enrolled as a dependent of the individual if the spouseis otherwise eligible for coverage.
b. Dependent specialenrollment period. A dependent special enrollment period under this sub‑subdivisionshall be a period of not less than 30 days and shall begin on the later of: (i)the date dependent coverage is made available, or (ii) the date of themarriage, birth, or adoption or placement for adoption described in sub‑subdivisiona.(iii) of this subdivision.
c. No waiting period. If an individual seeks to enroll a dependent during the first 30 days of thedependent's special enrollment period, the coverage of the dependent shallbecome effective: (i) in the case of marriage, not later than the first day ofthe first month beginning after the date the completed request for enrollmentis received; (ii) in the case of a dependent's birth, as of the date of thebirth; or (iii) in the case of a dependent's adoption or placement foradoption, the date of the adoption or placement for adoption.
(3) Treatment of specialenrollees.
a. If an individualrequests enrollment while the individual is entitled to special enrollmentunder this subsection, the individual is a special enrollee, even if therequest for enrollment coincides with a late enrollment opportunity under theplan. Therefore, the individual cannot be considered a late enrollee.
b. Special enrolleesshall be offered all of the benefit packages available to similarly situatedindividuals who enroll when first eligible. For this purpose, any difference inbenefits or cost‑sharing requirements for different individualsconstitutes a different benefit package. In addition, a special enrollee cannotbe required to pay more for coverage than a similarly situated individual whoenrolls in the same coverage when first eligible. The length of any preexistingcondition exclusion that may be applied to a special enrollee cannot exceed thelength of any preexisting condition exclusion that is applied to similarlysituated individuals who enroll when first eligible.
(4) Special rules forapplication in case of Medicaid or State Children's Health Insurance Program(Title XXI of the Social Security Act). A group health insurer shall permitan employee who is eligible, but not enrolled, for coverage under the terms ofthe plan (or a dependent of the employee if the dependent is eligible, but notenrolled, for coverage under the terms) to enroll for coverage under the termsof the plan if either of the following conditions is met:
a. Termination ofMedicaid or State Children's Health Insurance Program. The employee ordependent is covered under a Medicaid plan under Title XIX of the SocialSecurity Act or under a State children's health plan under Title XXI of theSocial Security Act and coverage of the employee or dependent under such a planis terminated as a result of the loss of eligibility for such coverage and theemployee requests coverage under the group health insurance coverage not laterthan 60 days after the termination of such coverage.
b. Eligibility foremployment assistance under Medicaid or State Children's Health InsuranceProgram. The employee or dependent becomes eligible for assistance, withrespect to coverage under the group health insurance coverage, under suchMedicaid plan or State child health plan (including any waiver or demonstrationproject conducted under or in relation to such a plan), if the employeerequests coverage under the group health insurance coverage not later than 60days after the date the employee or dependent is determined to be eligible forsuch assistance.
(g) Use of AffiliationPeriod by HMO as Alternative to Preexisting Condition Exclusion.
(1) In general. Ahealth maintenance organization that does not impose any preexisting conditionexclusion allowed under subsection (a) of this section with respect to anyparticular coverage option may impose an affiliation period for the coverageoption, but only if:
a. The period isapplied uniformly without regard to any health status‑related factors.
b. The period does notexceed two months (or three months in the case of a late enrollee).
(2) Affiliation period.
a. Defined. For thepurposes of this Subpart, "affiliation period" means a period that,under the terms of the health insurance coverage offered by the healthmaintenance organization, must expire before the health insurance coveragebecomes effective. The health maintenance organization is not required toprovide health care services or benefits during the period and no premium shallbe charged to the participant or beneficiary for any coverage during theperiod.
b. Beginning. Theperiod shall begin on the enrollment date.
c. Runs concurrentlywith waiting periods. An affiliation period under a plan shall runconcurrently with any waiting period under the plan.
(3) Alternative methods. A health maintenance organization described in subdivision (1) of thissubsection may use alternative methods, as approved by the Commissioner, fromthose described in that subdivision, to address adverse selection.
(h) General Notice ofPreexisting Condition Exclusion. A group health insurer offering group healthinsurance coverage subject to a preexisting condition exclusion shall provide awritten general notice of preexisting condition exclusion to participants underthe plan; and shall not impose a preexisting condition exclusion with respectto a participant or a dependent of the participant until the notice isprovided.
A group health insurer shallprovide the general notice of preexisting condition exclusion as part of anywritten application materials distributed by the insurer for enrollment. If theinsurer does not distribute these materials, the notice shall be provided bythe earliest date following a request for enrollment that the insurer, actingin a reasonable and prompt fashion, can provide the notice.
The general notice ofpreexisting condition exclusion shall notify participants of the following:
(1) The existence andterms of any preexisting condition exclusion under the plan. This descriptionincludes the length of the plan's look‑back period, which shall notexceed six months under subdivision (a)(1) of this section; the maximumpreexisting condition exclusion period under the plan, which shall not exceed12 months (18 months for late enrollees) under subdivision (a)(2) of thissection; and how the plan will reduce the maximum preexisting conditionexclusion period by creditable coverage, as described in subsection (c) of thissection.
(2) A description of therights of individuals to demonstrate creditable coverage, and any applicablewaiting periods, through a certificate of creditable coverage, as required bysubsection (e) of this section, or through other means as described in federalregulations. This shall include a description of the right of the individual torequest a certificate from a prior insurer, if necessary, and a statement thatthe current insurer will assist in obtaining a certificate from any prior planor insurer, if necessary.
(3) A person to contact,including an address or telephone number for obtaining additional informationor assistance about the preexisting condition exclusion.
Nothing in this subsectionaffects a group health insurer's responsibility under this section to fullydisclose in the master group policy, the certificate or evidence of coverage,and the member handbook the plan's preexisting condition limitation, the rulesrelating to creditable coverage, including how an individual may provide proofof creditable coverage, and the methods of counting and crediting coverage.
(i) Individual Noticeof Period of Preexisting Condition Exclusion. After an individual haspresented evidence of creditable coverage and the group health insurer has madea determination of creditable coverage under subdivision (c)(5) of thissection, the group health insurer shall provide the individual a written noticeof the length of preexisting condition exclusion that remains after offsettingfor prior creditable coverage. In the notice, the insurer is not required toidentify any medical conditions specific to the individual that could besubject to the exclusion. A group health insurer is not required to providethis notice if the plan does not impose any preexisting condition exclusion onthe individual or if the plan's preexisting condition exclusion is completelyoffset by the individual's prior creditable coverage.
The individual notice must beprovided by the earliest date following a determination that the group healthinsurer, acting in a reasonable and prompt fashion, can provide the notice.
A group health insurer shalldisclose:
(1) Its determination ofany preexisting condition exclusion period that applies to the individual,including the last day on which the preexisting condition exclusion applies.
(2) The basis for thatdetermination, including the source and substance of any information on whichthe plan or insurer relied.
(3) An explanation ofthe individual's right to submit additional evidence of creditable coverage.
(4) A description of anyapplicable appeal procedures established by the group health insurer.
(j) DeterminationModification. Nothing in this section prevents a plan or insurer frommodifying an initial determination of creditable coverage if it determines thatthe individual did not have the claimed creditable coverage, provided that:
(1) A notice of the newdetermination, consistent with the requirements of subsection (i) of thissection, is provided to the individual; and
(2) Until the notice ofthe new determination is provided, the group health insurer, for purposes ofapproving access to medical services (such as a presurgery authorization), actsin a manner consistent with the initial determination.
(k) Notice Form andContent. Any notices required under this section shall be in the form andcontent and be delivered as prescribed by, in accordance with, or as specifiedin federal regulations, unless otherwise provided in this Chapter. (1997‑259, s. 1(c);1998‑211, s. 7; 2001‑334, s. 9; 2005‑224, ss. 1, 4, 2.1, 2.2;2007‑298, ss. 2.3‑2.5; 2009‑382, ss. 4, 23.)
