When a small employer health insurance plan is offered, it must be available:

Under Virginia law and the federal Affordable Care Act (ACA), health insurance plans offered in the small employer market must be provided on a guaranteed-issue basis. This means that if a small employer chooses to offer a plan, the insurer must offer coverage to all employees who meet the employer's eligibility criteria (e.g., full-time status) and who choose to enroll. The insurer cannot deny coverage to eligible employees or their dependents based on health status or other discriminatory factors. This provision ensures broad access to coverage and prevents adverse selection against the insurer.

B. The ACA limits waiting periods for group health plans to a maximum of 90 days; a 12-month waiting period is not permissible.

C. Guaranteed-issue provisions, which apply to the small group market, prohibit insurers from requiring evidence of insurability as a condition for coverage.

D. Excluding employees based on age (such as being 65 or older) is a form of illegal age discrimination under the federal Age Discrimination in Employment Act (ADEA).

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1. Code of Virginia, § 38.2-3431(A). This statute mandates that health insurance issuers in the small group market must offer plans on a guaranteed-issue basis. It states, "A health insurance issuer shall issue any of such health benefit plans to any small employer that elects to be covered under such plan and agrees to satisfy the other provisions of the health benefit plan." This establishes the requirement to cover the entire eligible group.

2. U.S. Public Health Service Act, Section 2702 (42 U.S.C. § 300gg-1). As amended by the ACA, this federal law establishes the "guaranteed availability of coverage" for the small group market, requiring issuers to accept every small employer and all their eligible employees who apply for coverage.

3. U.S. Department of Labor, "FAQs About Affordable Care Act Implementation Part XI," Q1. This official guidance clarifies the 90-day waiting period limitation. It explicitly states, "The final regulations prohibit waiting periods for coverage under a group health plan from exceeding 90 days." This directly refutes the legality of a 12-month waiting period.

4. U.S. Equal Employment Opportunity Commission, "Age Discrimination." The official documentation on the Age Discrimination in Employment Act (ADEA) of 1967 states that it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including employee benefits like health insurance. This makes it illegal to exclude employees over age 65.