Timothy Jost, who probably knows the legal quirks of the ACA better than anyone, very helpfully offered some clarifications about how the mini-med loophole works. Below is his email to me (shared with permission).
Large group and self-insured plans are also subject to the lifetime and annual dollar limit cap. They cannot, therefore, legally offer fixed dollar indemnity policies as medical coverage. The WSJ article is wrong on this. Fixed-dollar indemnity plans can be offered as excepted benefit plans as long as payments are based on time periods rather than services. Under recent guidance, fixed dollar indemnity policies can also be offered in addition to comprehensive coverage as excepted benefits. I blogged about this last week at HA. But they cannot be offered alone as minimum essential coverage (and excepted benefits are expressly not MEC).
An employer could offer, that is, a plan that covered preventive services and 2 days of hospital coverage and 5 physician visits and meet the MEC requirement. An employer cannot, however, meet the MEC requirement with a fixed-dollar indemnity policy.
Another issue is the discrimination in favor of highly compensated employee prohibition. The agencies have yet to issue regs on this, but the requirement is in effect. An employer that had all of its executives signed up for Cadillac coverage but its minimum wage employees in mini-meds could conceivably be found to violate that prohibition.
For more detail, you can see Jost’s posts describing guidance on fixed dollar indemnity plans over at the Health Affairs blog, here and here.