Burand’s Agency E&O Blog: Tip #58

ACA Grandfathering Disclaimer. According to the Wall Street Journal (Nov. 6, 2013), the first E&O suits have been filed against an insurance company for allegedly misleading a consumer into changing their health insurance deductible and thereby obviating the grandfathering clause of the ACA as was applicable to the consumer’s policy. The consumer’s deductible was increased so that her premium would decrease and now she alleges she cannot keep her insurance policy according to the article. Another suit claiming the same damage alleges the policy was changed to improve the insured’s coverage.

While the suits are against carriers, the writing is clearly on the wall. I don’t know how agents and companies can protect themselves retroactively. The cat is mostly out of the bag. Going forward though, consider adding a disclaimer to any recommendations your firm makes regarding changes to health plans. It would have to be a broad disclaimer such as, “Any changes to your plan may cause a loss of privileges that we do not know exist at this time or because so many factors are unknown and so many factors are constantly changing, it is possible a combination of these factors could cause a loss of privileges and coverages later. We are not in a position to predict such losses of future coverages and privileges.”

Given the highly political and legal nature of the situation, you should obtain legal counsel involving any disclaimer. I also recommend asking for advice from your health carriers and your E&O carrier as to how to best protect yourself.

Topics Professional Liability