White Paper

13 Pages
  • 13 Pages

Nondiscrimination Testing for Health Plans


Code Section 105(h) and Post-ACA Design Alternatives

The Affordable Care Act explicitly prohibits eligibility exclusions and discrimination based on compensation, health status, protected classifications, and excess waiting periods. These rules build on prior Internal Revenue Code rules that protected rank and file employees from discrimination and protected certain vulnerable groups, like the sick and disabled. Post ACA, employers and health coverage providers are increasingly sensitive to perceived and actual discrimination. There is a renewed effort to design programs to avoid discrimination and to test actual operations to ensure that those designs translate into actual protections. This white paper reviews IRC nondiscrimination rules, health status and protected classifications, and waiting periods.



Tonie Bitseff

Tonie Bitseff


  • Member of the Corporate Law and the Labor & Employment Practice Groups in Buchalter’s Seattle office
  • Over 20 years of experience serving as ERISA counsel to employee benefit plans and employers
  • Addresses legal issues in design, implementation, administration, corrections, and conflict resolution related to health plans, severance plans, life insurance, disability benefits, wellness plans, 125 plans, individual account plans (HSAs, FSAs, and HRAs), retirement plans, and other forms of compensation
  • Assists clients with design, diligence review, internal audits, benefit outsourcing, vendor management, coverage issues, ERISA fiduciary liability, ERISA claims and appeals processes, and government audits
  • She serves as ERISA counsel supporting contract negotiations and business transactions such as mergers and acquisitions
  • LL.M. degree in taxation, University of Washington School of Law; J.D. degree, Seattle University School of Law; B.A. degree in speech communications, University of Washington
  • Can be contacted at 206-319-7042 or [email protected]

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