146.143—Preemption; State flexibility; construction.
(a) Continued applicability of State law with respect to health insurance issuers.
Subject to paragraph (b) of this section and except as provided in paragraph (c) of this section, part A of title XXVII of the PHS Act is not to be construed to supersede any provision of State law which establishes, implements, or continues in effect any standard or requirement solely relating to health insurance issuers in connection with group health insurance coverage except to the extent that such standard or requirement prevents the application of a requirement of this part.
(b) Continued preemption with respect to group health plans.
Nothing in part A of title XXVII of the PHS Act affects or modifies the provisions of section 514 of ERISA with respect to group health plans.
(c) Special rules—
(1) In general.
Subject to paragraph (c)(2) of this section, the provisions of part A of title XXVII of the PHS Act relating to health insurance coverage offered by a health insurance issuer supersede any provision of State law which establishes, implements, or continues in effect a standard or requirement applicable to imposition of a preexisting condition exclusion specifically governed by section 2701 of the PHS Act which differs from the standards or requirements specified in section 2701 of the PHS Act.
(2) Exceptions.
Only in relation to health insurance coverage offered by a health insurance issuer, the provisions of this part do not supersede any provision of State law to the extent that such provision—
(i)
Shortens the period of time from the “6-month period” described in section 2701(a)(1) of the PHS Act and § 146.111(a)(2)(i) (for purposes of identifying a preexisting condition);
(ii)
Shortens the period of time from the “12 months” and “18 months” described in section 2701(a)(2) of the PHS Act and § 146.111(a)(2)(ii) (for purposes of applying a preexisting condition exclusion period);
(iii)
Provides for a greater number of days than the “63-day period” described in sections 2701(c)(2)(A) and (d)(4)(A) of the PHS Act and §§ 146.111(a)(2)(iii) and 146.113 (for purposes of applying the break in coverage rules);
(iv)
Provides for a greater number of days than the “30-day period” described in sections 2701(b)(2) and (d)(1) of the PHS Act and § 146.111(b) (for purposes of the enrollment period and preexisting condition exclusion periods for certain newborns and children that are adopted or placed for adoption);
(v)
Prohibits the imposition of any preexisting condition exclusion in cases not described in section 2701(d) of the PHS Act or expands the exceptions described therein;
(vi)
Requires special enrollment periods in addition to those required under section 2701(f) of the PHS Act; or
(vii)
Reduces the maximum period permitted in an affiliation period under section 2701(g)(1)(B) of the PHS Act.
(d) Definitions—
(1) State law.
For purposes of this section the term State law includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State. A law of the United States applicable only to the District of Columbia is treated as a State law rather than a law of the United States.
(2) State.
For purposes of this section the term State includes a State (as defined in § 144.103 ), any political subdivisions of a State, or any agency or instrumentality of either.
[69 FR 78797, Dec. 30, 2004; 70 FR 21147, Apr. 25, 2005]