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The release of new rules offering guidance on how to put key provisions of the federal health care reform law into practice sent a loud and clear message to lawyers: time to pay attention again. Following what lawyers say was a pre-election slowdown in the pace of federal agencies tasked with crafting rules for implementing the Affordable Care Act, the U.S. Department of Health and Human Services on November 20 announced three new rules, including one that will make it illegal for insurance companies to discriminate against people with pre-existing conditions. “During the election season there was probably a hold because of a lack of clarity on direction,” said Proskauer Rose partner Paul Hamburger, co-head of the firm’s Health Care Reform Task Force. But with today’s announcement, he said, “it seems to be full steam ahead.” While the announcement involved one of the law’s higher-profile provisions on coverage for individuals with pre-existing conditions, Hamburger said he’s looking ahead to the release of rules on the implementation of other provisions likely to affect his clients – employers figuring out how the law will affect insurance coverage for their employees – in a major way, including the creation of the health care exchange. “We’re just sort of bracing for the impact,” he said. The proposed rule on coverage for pre-existing conditions from the Centers for Medicare & Medicaid Services, which implements provisions of the Affordable Care Act, would go into effect in 2014 and prohibit insurance companies “from discriminating against individuals because of a pre-existing or chronic condition.” Under the rule, insurance companies could not deny coverage or charge higher premiums based on pre-existing conditions or other factors like claims history, gender or occupation. Instead, companies could only vary premiums based on age, tobacco use, family size and geography. “The Affordable Care Act recognizes that well-run, equitable workplace wellness programs allow workers to access services that can help them and their families lead healthier lives,” said Secretary of Labor Hilda Solis in a news release. “Employers, too, can benefit from reduced costs associated with a healthier workforce.” According to the federal government, as many as 129 million – or 1 in 2 – non-elderly Americans have some type of pre-existing health condition, whether a life-threatening illness or chronic condition like asthma or diabetes. The proposed rule also includes provisions for enrollment in catastrophic plans, which have lower premiums. The second rule announced today outlined policies and standards for coverage of “essential health benefits” – a core set of benefits that consumers will be able to use to compare different plans, according to the HHS release. The third rule offers guidance on the expansion and implementation of employment-based wellness programs, such as programs aimed at helping employees to stop smoking cigarettes or lose weight. The release of new rules removes a lot of uncertainty when it comes to advising clients on regulatory and policy issues, said Robert Bradner, a partner at Holland & Knight‘s Washington office who represents health care providers. “This will help health insurers who want to offer plans in the health exchanges to roll up their sleeves and start doing the complex calculations and benefit design work they need to do in order to design a policy that follows the law,” Bradner said. Staff writer Todd Ruger contributed this article. Contact Jenna Greene at jgreene@alm.com. Contact Zoe Tillman at ztillman@alm.com.

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