People still ask this, a decade after the rules changed, because the fear outlasted the law. For health coverage — as opposed to life or disability insurance — the answer is short.
The short answer: no. A health plan or insurer "may not impose any preexisting condition exclusion with respect to such plan or coverage."¹ It "may not establish rules for eligibility (including continued eligibility) of any individual to enroll" based on "health status," "medical condition (including both physical and mental illnesses)," "claims experience," "receipt of health care," "medical history," "genetic information," "evidence of insurability," or "disability."² It "may not require any individual … to pay a premium or contribution which is greater than such premium or contribution for a similarly situated individual enrolled in the plan on the basis of any health status-related factor."² Every issuer in the individual or group market "must accept every employer and individual in the State that applies for such coverage"; the exceptions are timing — open and special enrollment periods — and capacity, where a network plan has no room or an issuer lacks the financial reserves, and then only if it refuses everyone alike.³ Premiums in the individual and small-group markets may vary "only by" whether the plan covers an individual or family, rating area, age within a 3-to-1 band, and tobacco use.⁴ California says the same in its own statutes: a plan "shall fairly and affirmatively offer, market, and sell all of the plan's health benefit plans that are sold in the individual market … to all individuals and dependents in each service area," and an individual plan "shall not impose any preexisting condition provision upon any individual."⁵ And what the plan must cover includes "mental health and substance use disorder services, including behavioral health treatment."⁶
What a "pre-existing condition provision" was
California defines the thing that is now forbidden: "a contract provision that excludes coverage for charges or expenses incurred during a specified period following the enrollee's effective date of coverage, as to a condition for which medical advice, diagnosis, care, or treatment was recommended or received during a specified period immediately preceding the effective date of coverage."⁷ That was the waiting-period clause that used to mean a year without coverage for the depression you were treated for before you enrolled. For individual plans "issued, amended, or renewed on or after January 1, 2014," such a provision is barred;⁵ for small-group plans, "a health benefit plan for group coverage shall not impose any preexisting condition provision or waivered condition provision upon any enrollee."⁸
What cannot be asked, and what can
The federal list of forbidden eligibility factors is the whole of what an underwriter used to want: health status, medical condition "including both physical and mental illnesses," claims experience, receipt of health care, medical history, genetic information, evidence of insurability, disability.² None may be used to decide whether you are enrolled, and none may be used to price you.² What a plan in California's individual market may use to set your rate is a closed list: age, on the federal age curve, varying "not … by more than three to one for like individuals of different age who are 21 years of age or older"; geographic region; and "whether the plan covers an individual or family."⁹ "The rate for a health benefit plan subject to this section shall not vary by any factor not described in this section."⁹ California's list is shorter than the federal one by one item — tobacco — because the state statute does not include it.⁹
So a health plan application has no lawful use for your diagnosis; if a form asks a health question, the answer may not be used to refuse, exclude or price you.² ⁵
When you can enrol
Guaranteed issue is subject to timing: an issuer "may restrict enrollment in coverage described in such subsection to open or special enrollment periods," and must "establish special enrollment periods for qualifying events."³ A mental health history is never a reason to be refused; a missed window is a reason to wait. I lost my job. Can I keep my therapist? →
What the plan then has to cover
An issuer in the individual or small-group market "shall ensure that such coverage includes the essential health benefits package," and the essential health benefits "shall include at least" ten categories, the fifth being "mental health and substance use disorder services, including behavioral health treatment."⁶ ¹⁰ How much, and on what terms, is the parity question. What is mental health parity? →
Where these rules do not reach
- Life and disability insurance are underwritten, and a different statute governs. Will therapy affect my life insurance? →
- Self-funded employer plans are federal-law plans; the federal rules above apply to them, the California ones do not. Self-funded employer plans →
- Grandfathered individual policies — plans bought before the federal reform and never changed — may still carry a pre-existing condition provision of up to 12 months and sit outside the state rating rules.⁸ ⁹
- Products the statutes treat as something other than health coverage — stand-alone dental, fixed-indemnity and similar "excepted benefits" — are outside these rules; the statutes quoted here speak of health benefit plans and health insurance coverage in the individual and group markets.³ ⁵
What to do
- Apply in the window. Open enrollment, or a special enrollment period after a qualifying event.³
- Do not withhold treatment history out of fear — the plan cannot use it,² and an accurate history helps with continuity of care and prior authorizations. Prior authorization for therapy →
- If you are refused, rated up or told a condition is excluded, ask for it in writing and file with the regulator — the Department of Managed Health Care for a plan, the Department of Insurance for an insurer; the linked page carries the statute. How to file a DMHC complaint →
Worked example
A man who was hospitalized for depression two years ago leaves his job and shops for an individual plan in Covered California during open enrollment. The plan must accept him,³ ⁵ may not make his health status a condition of enrolment,² may not exclude treatment for his depression as a pre-existing condition,¹ ⁵ and may price him only by his age, his region, and whether he is covering himself alone.⁹ His plan must cover mental health and substance use disorder services as an essential health benefit.⁶ ¹⁰
Q&A
Q: Can they charge me more because I take psychiatric medication? A: No. Premiums may not be greater than a similarly situated person's "on the basis of any health status-related factor,"² and in California's individual market the rate "shall not vary by any factor" other than age, region and family size.⁹
Q: My employer's plan has a waiting period. Is that a pre-existing condition exclusion? A: A waiting period is different from a pre-existing condition exclusion, and the exclusion is what these statutes forbid.¹ ⁷ In California a health plan itself "shall not impose any waiting or affiliation period";⁸ an employer's own eligibility wait is governed by a different rule, not cited here.
Q: Does this apply to Medi-Cal? A: Medi-Cal is a public programme with its own eligibility rules, none of which concern your health history; the linked page carries the statute. Medi-Cal income limits for therapy →
Q: What about a plan that says it does not cover "mental illness" at all? A: Individual and small-group coverage must include the essential health benefits package, and mental health and substance use disorder services are one of its ten categories.⁶ ¹⁰ Large-group and self-funded plans are governed by the parity law, on the linked page. What is mental health parity? →
Our therapist directory: See its current status →
Sources
- 42 U.S.C. §300gg-3(a) — "A group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any preexisting condition exclusion with respect to such plan or coverage" — law.cornell.edu.
- 42 U.S.C. §300gg-4 — (a) "A group health plan and a health insurance issuer offering group or individual health insurance coverage may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan or coverage based on any of the following health status-related factors in relation to the individual or a dependent of the individual: (1) Health status. (2) Medical condition (including both physical and mental illnesses). (3) Claims experience. (4) Receipt of health care. (5) Medical history. (6) Genetic information. (7) Evidence of insurability (including conditions arising out of acts of domestic violence). (8) Disability"; (b)(1) "may not require any individual (as a condition of enrollment or continued enrollment under the plan) to pay a premium or contribution which is greater than such premium or contribution for a similarly situated individual enrolled in the plan on the basis of any health status-related factor in relation to the individual or to an individual enrolled under the plan as a dependent of the individual" — law.cornell.edu.
- 42 U.S.C. §300gg-1 — (a) "Subject to subsections (b) through (e), each health insurance issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage"; (c) special rules for network plans (service area; capacity to serve additional enrollees, applied uniformly); (d) financial capacity limits, applied uniformly without regard to claims experience or health status; (b)(1) "A health insurance issuer described in subsection (a) may restrict enrollment in coverage described in such subsection to open or special enrollment periods"; (b)(2) the issuer "shall … establish special enrollment periods for qualifying events" — law.cornell.edu.
- 42 U.S.C. §300gg(a)(1) — "such rate shall vary with respect to the particular plan or coverage involved only by— (i) whether such plan or coverage covers an individual or family; (ii) rating area …; (iii) age, except that such rate shall not vary by more than 3 to 1 for adults …; and (iv) tobacco use, except that such rate shall not vary by more than 1.5 to 1"; (B) "such rate shall not vary with respect to the particular plan or coverage involved by any other factor not described in subparagraph (A)" — law.cornell.edu.
- Cal. Health & Safety Code §1399.849 — (a)(1) "On and after October 1, 2013, a plan shall fairly and affirmatively offer, market, and sell all of the plan's health benefit plans that are sold in the individual market for policy years on or after January 1, 2014, to all individuals and dependents in each service area in which the plan provides or arranges for the provision of health care services"; (b) "An individual health benefit plan issued, amended, or renewed on or after January 1, 2014, shall not impose any preexisting condition provision upon any individual" — california.public.law. The parallel rule for insurers is Cal. Insurance Code §10965.3(a)(1) and (b) — california.public.law.
- 42 U.S.C. §300gg-6(a) — "A health insurance issuer that offers health insurance coverage in the individual or small group market shall ensure that such coverage includes the essential health benefits package required under section 18022(a) of this title" — law.cornell.edu.
- Cal. Health & Safety Code §1399.845(i) — "Preexisting condition provision" means "a contract provision that excludes coverage for charges or expenses incurred during a specified period following the enrollee's effective date of coverage, as to a condition for which medical advice, diagnosis, care, or treatment was recommended or received during a specified period immediately preceding the effective date of coverage" — california.public.law.
- Cal. Health & Safety Code §1357.51 — (a) "A health benefit plan for group coverage shall not impose any preexisting condition provision or waivered condition provision upon any enrollee"; (b) "A grandfathered health benefit plan for individual coverage shall not exclude coverage on the basis of a waivered condition provision or preexisting condition provision for a period greater than 12 months"; (c) "A health benefit plan for group or individual coverage shall not impose any waiting or affiliation period" — california.public.law.
- Cal. Health & Safety Code §1399.855 — (a) "a health care service plan may use only the following characteristics of an individual, and any dependent thereof, for purposes of establishing the rate of the individual health benefit plan …": (1) age, with rates that "shall not vary by more than three to one for like individuals of different age who are 21 years of age or older"; (2) "Geographic region"; (3) "Whether the plan covers an individual or family, as described in PPACA"; (b) "The rate for a health benefit plan subject to this section shall not vary by any factor not described in this section"; (e) grandfathered health plans excluded — california.public.law.
- 42 U.S.C. §18022(b)(1) — the essential health benefits "shall include at least the following general categories …: (E) Mental health and substance use disorder services, including behavioral health treatment" — law.cornell.edu.
Paid for by participating therapists. Inclusion is computed from availability data — never purchased. No ads, no data sold.