Loopholes in the Affordable Care Act : Regulatory Gaps and Border Crossing Techniques and How to Address Them

The Affordable Care Act was meant to regulate health care plans comprehensively. Most insurance reform provisions apply to individual and group coverage, including small group, large group, and self-insured plans. A number of types of insurance, however, are not covered by some or all of the ACA reforms, including grandfathered plans, early retiree plans, health care sharing ministries, excepted benefits, and short-term limited duration policies. The ACA also leaves open the possibility of “border crossing” techniques, which could allow small group or even individual plans to claim to be subject to less protective regulatory provisions governing large group plans. This article analyzes the “loopholes” in the ACA and examines what the state and federal governments can do to ensure that consumers receive the protection they are promised by the ACA